


CONSTITUTIONAL PROVISION 



R E Sl'ECTIXG 



FUGITIVES FROM SEITOE OR LABOR, 



ACT OF CONGRESS, 



OF 



SEPTEMBER 18, 1850. 






/ 



BY THOMAS H. TALBOT, 

OF THE CUMBERLAND BAR, MAINE. 



\ 



But is this law ? 

Hamlet, Act V., Sc. I. 



BOSTON: 

BELA MARSH, No. 25 CORNHILL 

1852. 



V- 



. 



f y.^ 



Entered according to Act of Congress, in the year 1852, 

By THOMAS H. TALBOT, 

in the Clerk's Office of the District Court of Maine. 



CONTENTS. 



Act of Congress of 1793 4 

Act of Congress of 1850 5 



PART FIRST, 

I. The Constitutional Provision 9 21 

II. The Statute Provision 22 28 

III. Review of Decisions 28 37 



PART SECOND. 

I. The Character of the Proceeding — Not Pre- 
liminary, but Final 39 67 

II. Tub Method of the Proceeding — There must be 

Due Process of Law 67 84 



PART THIRD. 

The Difference Between the Extradition of Per- 
sons Charged with Crime, and the Delivery 
of Persons Held to Service or Labor 85 10S 

Conclusion ■ 109 117 

Appendix 119 128 



Act of Congress of 1793. 

An Act respecting Fugitives from Justice, and persons 

ESCAPING FROM THE SERVICE OF THEIR MASTERS. 

Sec. 1. Beit enacted by the Senate and Howe of Representative of the United States of 
America in Congress assembled, That whenever the executive authority of liny State in the 
Union, or of either of the territories northwest or south of the river Ohio, shall demand 
any person as a fugitive from justice, of the executive authority of any such State or Ter- 
ritory to which such person shall have fled, and shall moreover produce the copy of an in- 
dictment found, or an affidavit made before a magistrate of any State or Territory as afore- 
said, charging the person so demanded, with having committed treason, felony or other 
crime, certified as authentic by the Governor or chief magistrate of the State or Territory 
from whence the person so charged tied, it shall be the duty of the executive authority of 
the State or 1 erntory to which such person shall have fled, to cause him or her to be ar- 
rested and secured, and notice of the arrest to be given to the executive authority making 
such demand, or to the agent of such authority appointed to receive the fugitive, and to 
cause the fugitive to be delivered to such agent when he shall appear ; But if nosuch agent 
snail appear within six months from the time of the arrest, the prisoner may be discharged. 
aiui all costs or expenses incurred in the apprehending, securing, and transmitting such 
Territo tlle btate or rerr 't°i"y making such demand, shall be paid by such State or 

' Si j. c - r\ A»dbc it further enacted, Tint any agent, appointed as aforesaid, who shall receive 
me tugitive into his custody, shall be empowered to transport him or her to the State or 
territory from which he or she shall have fled. And if any person or persons shall by 
lorce set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, 
tne person or persons so offending shall, on conviction, be fined not exceedin" five hundred 
dollars, and he imprisoned not exceeding one year. 

Sec. 3. And beit also enacted, That when a person held to labor in any of the United 
states, ot 'in either of the Territories on the northwest or soulh of the river Ohio, under 
,„h„ V U \ e \ e f> sna " e : sc;l Pe into any olher of the said States or Territory, the person to 
whom such labor or service may be due, his agent or attorney, is hereby empowered to 
seize or arrest such tugitive from labor, and to take him or her before anv judge of the Cir- 
cuit or District Courts of the United States, residing or being within tlie State, or before 
any magistrate of a county, city or town corporate, wherein such seizure or arrest shall 
be made, and upon proof 10 the satisfaction of such judge or magistrate, either by oral tes- 
timony or affidavit taken before and certified by a magistrate of anv such State or Territo- 
r>, that the person so seized or arrested, doth, under the laws of the State or Territory 
IhLTi T V. ,1 01 7 h ° , fle V nve service or labor to the person claiming him or her, it 
snail be the duty of such judge or magistrate to give a certificate thereof to such claimant, 
riis agent or attorney, which shall be sufficient warrant for removing the said fugitive from 
idDor, to the State or Territory from which he or she fled. 

„, f, c- f An* be it further enicted, That any person who shall knowingly and willingly 
opstruct or hinder such claimant, his agent or attorney in so seizing or arresting such fu- 
gitive from labor, or shall rescue such fugitive from such claimant, bis agent or attorney 
when so arrested pursuant to the authority herein given or declared ; or shall harbor or 
conceal such person after notice that he or she was a fugitive from labor as aforesaid, shall, 
tor either of the said offences, forfeit and pay the sum of five hundred dollars. Which 
penalty may be recovered by und for the benefit of such claimant, by action of debt, in 
c^vf,?^- 1 "' 01 '^^ 1 '' 5 ' tne f same i s:lvi, 'g moreover to the person claiming such labor or 
seivice, his right of action for or on account of the said injuries or either of them 

JONATHAN TRUMBULL, 

Speaker of the House of Representatives. 

a „, - „ a p k , -, X ice ,fZ esidenl °f the Uniled States, and President of the Senate. 

Approved, February 12th, 1793. 

GEORGE WASHINGTON, 

President of Vie United States. 



Act of Congress of 1850. 

An Act to amend, and supplementary to, the Act entitled 
" An Act respecting Fugitives from Justice, and persons 
escaping from the service of their masters," approved 
February 12, 1793. 

Sec. 1. Be it enacted by the Senate and House of Representatives of the United States of 
America in Congress assembled, That the persons who have been, or may herealter be, ap- 
pointed commissioners, in virtue of any act of Congress, by the Circuit Courts of the 
United States, and who, in consequence of such appointment, are authorized to exercise 
the powers that any justice of the peace, or other magistrate of any of the United States , 
may exercise in respect to offenders for any crime or offence against the United Slates, by 
arresting, imprisoning, or bailing the same under and by virtue of the thirty-third section 
of the act of t lie twenty-fourth oi September seventeen hundred and eighty-nine, entitled 
" An Act to establish the judicial Courts of the United States," shall be, and are hereby 
authorized and required to exercise and discharge all the powers and duties conferred by 
this act. 

Sec. 2. And be it further enacted. That the superior Court of each organized territory of 
the United States shall have the same power to appoint commissions to take acknowledg- 
ments of bail and affidavits, and to take depositions ot witnesses in civil causes, which is 
now possesssed by the Circuit Court of the United States ; and all commissioners who shall 
hereafter be appointed for such purposes by the superior Court of any organized Territory 
of the United States, shall possess all the powers and exercise all the duties, conferred by 
law upon the commissioners appointed by the Circuit Courts of the United States for simi- 
lar purposes, and shall moreover exercise and discharge all the powers and duties confer- 
red by this act. 

Sec. 3. And be it further enacted, That the Circuit Courts of the United States, and the 
superior Courts of each organized Territory of the United States, shall from time to time 
enlarge the number of commissioners, with a view to afford reasonable facilities to reclaim 
fugitives from labor, and to the prompt discharge of the duties imposed by this act. 

Sec. 4. And be it further enacted, That the commissioners above named shall have con- 
current jurisdiction with the judges of the Circuit and District Courts of the United States, 
in their respective Circuits and districts within the several States, and the judges of the 
superior Courts of the Territories, severally and collectively, in term time and vacation ; 
and shall grant certificates to such claimants, upon satisfactory proof being made, with 
authority to take and remove such fugitives from service or labor, under the restrictions 
herein contained, to the State or Territory from which such persons may have escaped or 
fled. 

Sec. 5. And be it further enacted, That it shall be the duty of all marshals and deputy 
marshals to obey and execute all warrants and precepts issued under the provisions of this 
act, when to them directed; and should any marshal or deputy marshal refuse to receive 
such warrant or other process, when tendered, or to use all proper means diligently to ex- 
ecute the same, he shall, on conviction thereof, be fined in the sum of one thousand dol- 
lars, to the use of such claimant, on the motion of such claimant, by the Circuit or District 



Court for ihe district of such marshal ; and after arrest of such fugitive ,by such marshal 
or his deputy, or whilst at any time in his custody under the provisions of this act, should 
such fugitive escape, whether with or without the assent of such marshal or his deputy, 
such marshal shall le liable, on his official bond, to be prosecuted for the benefit of such 
claimant, for the full value of the service or labor of said fugitive in the State, Territory, 
or District whence he escaped : and the better to enable the said commissioners, when 
tiius appointed, to execute their duties faithfully and efficiently, in conformity with the re- 
quirements of the constitution of the United States and of this act, they are hereby author- 
zed and empowered, within their counties respectively, to appoint, in writing under 
their hands, any one or more suitable persons, from time to time, to execute all such 
warrants and other process as may be issued by them in the lawful perlormance of their 
respective duties; with authority to such commissioners, or the persons to be appointed 
by them, to execute process as aforesaid, to summon and call to their aid the bystanders, 
or posse comitatus of the proper county, when necessary to insure a faithful observance of 
the clause of the constitution referred to, in conformity witli the provisions of this act ; 
and all good citizens are hereby commanded to aid and assist in the prompt and efficient 
execution of this law, whenever their services may bo required, as aforesaid, for that pur 
pose ; and said warrants shall run, and be executed by said officers, anywhere in the State 
within which they are issued. 

Sec. 6. And be it further enacted, That when a person held to service or labor in any 
Saite or Territory of the United States, lias heretofore or shall hereafter escape into another 
State or Territory of the United States, the person or persons to whom such labor or ser- 
vice may be due, or his, her. or their agent or attorney, duly authorized, by power of at 
t irney, in writing, acknowledged and certified under the seal of some legal officer or court 
of the State or Territory in which tiie same may be executed, may pursue and reclaim 
such fugitive person, either by procuring a warrant from some one of the courts, judges, or 
ommissioners aforesaid, of the proper Circuit, District, or County, for the apprehension 
of sueh fugitive from service or labor, or by seizing and arresting such fugitive, where the 
same can be done without process, and by taking or causing such person to be taken, 
forthwith before such court, judge, or commissioner, whoso duty it shall bo to hear and de- 
termine the case of such claimant, in a summary manner; and upon satisfactory proof be- 
ing made, by deposition or affidavit, in writing, to be taken and certified by such court, 
judge, or commissioner, or by other satisfactory testimony, duly taken and certified by 
some court, magistrate, justice of the peace, or other legal officer authorized to administer 
an oath and take depositions under the laws of the State or Territory from which such 
person owing service or labor may have escaped, with a certificate of such magistracy or 
other authority, as aforesaid, with the seal of the proper court or officer thereto attached, 
which seal shall be sufficient to establish the competency of the proof, and with proof, 
also by affidavit, of the identity of the person whose service or labor is claimed to be due 
as aforesaid, that the person so arrested does in fact owe service or labor to the person or 
persons claiming him or her, in the State or Territory from which such fugitive may have 
escaped as aforesaid, and that said person escaped, to make out and deliver to such claim- 
ant, his or her agent or attorney, a certificate setting forth the substantial facts as to the 
service or labor due from such fugitive to the claimant, and of his or her escape from the 
State orTerritory in which such service or labor was due, to the State or Territory in which 
he or she was arrested, with authority to such claimant, or his or her agent or attorney, to 
use such reasonable force and restraint as maybe necessary under the circumstances 
of the case, to take an/1 remove such fugitive person back to the State or Territory 
whence he or she may have escaped as aforesaid. In no trial or hearing under this act 



shall the testimony of such alleged fugitive he admitted in evidence; and the certificate in 
this and the first [fourth] section mentioned, shall he conclusive of the right of the person 
or persons in whose favor granted, to remove such fugitive to the State or Territory from 
which he escaped, and shall prevent all molestation of such person or persons by any pro- 
cess issued by any court, judge, magistrate, or other person whomsoever. 

Sec. 7. And be il/unker enacted, That any person who shall knowingly and willingly 
obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons 
lawfully assisting him, her, or them, from arresting such fugitive from service or labor, 
either with or without process as aforesaid ; or shall rescue, or attempt to rescue, such fu- 
gitive from service or labor, from the custody of such claimant, his or her agent or attor- 
ney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant 
to the authority herein given and declared; or shall aid, abet, or assist such person so 
owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his 
agent or attorney, or other person or persons legally authorized as aforsaid ; or shall har- 
bor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after 
notice or knowledge of the fact that such person was a fugitive from service or labor as 
aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand 
dollars, and imprisonment not exceeding six months, by indictment and conviction before 
the District Court of the United States for the district in which such offence may have been 
committed, or before the proper court of criminal jurisdiction, if committed within any 
one of the organized Territories of the United States ; and shall moreover forfeit and pay, 
by way of civil damages to the party injured by such illegal conduct, the sum of one thou- 
sand dollars for each fugitive so lost as aforesaid, to be recovered^by action of debt, in any 
of the District or Territorial Courts aforesaid, within whoso jurisdiction the said offence 
may have been committed. 

Sec. 8. And be it further enacted, That the marshals, their deputies, and the clerks of 
the said District and Territorial Courts, shall be paid, for their services, the like fees as may 
be allowed to them for similar services in other cases ; and where such services are ren- 
dered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or 
her agent or attorney, or where such supposed fugitive may be discharged out of custody 
for the want of sufficient proof as aforesaid, then such fees are to be paid in the whole by 
such claimant, his agent or attorney; and in all cases wher.e the proceedings are before a 
commissioner, he shall be entitled to a fee of ten dollars in full for his services in each 
case, upon the delivery of the said certificate to the claimant, hisorher agent or attorney ; 
or a fee of five dollars in cases where the proof shall not, in the opinion of such commis- 
sioner, warrant such certificate and delivery, inclusive of all services incident to such ar- 
rest and examination, to be paid, in either case, by the claimant, his or her agent or attor 
ney. The person or persons authorised to execute the process to be issued by such com- 
missioner for the arrest and detention of fugitives from service or labor as aforesaid, shall 
also be entitled to a fee of five dollars each, for each person he or they may arrest and take 
before any such commissioner as aforesaid, at the instance and request of such claimant,with 
such other fees as may be deemed reasonable by such commissioner for such other addi- 
tional services as may be necessarily performed by him or them ; such as attending at the 
examination, keeping the fugitive in custody, and providing him with food and lodging 
during his detention, and until the final determination of such commissioner; and, in gen- 
eral, for performing such other duties as may be required by such claimant, his or her at- 
orney or agent, or commissioner in the premises, such fees to be made up in conformity 
with the fees usually charged by the officers of the courts of justice wkhin the proper dis- 
trict or county, as near as may be practicable, and paid by such claimants, their agents or 



8 



attorneys, whether such suppposed fugitives from service or labor be ordered to be deliver- 
ed to such claimants by the final determination of such commissioners or not. 

Sec. 9. And be it further enacted, That, upon affidavit made by the claimant of such fu- 
gitive his a»ent or attorney, after such certificate has been issued, that he has reason to 
apprehend that such fugitive will be rescued by force from his or their possession before 
he can be taken beyond the limits of the State in which the arrest is made, it shall be the 
duty of the officer making the arrest to retain such fugitive in his custody, and to remove 
hira to the State whence he fled, and there to deliver him to said claimant, his agent, or at- 
torney. And to this end, the officer aforesaid is hereby authorized and required to employ 
so many persons as he may deem necessary to overcome such force, and to retain them in 
his service so long as circumstances may require. The said officer and his assistants, while 
so employed, to receive the same compensation, and to be allowed the same expenses, as 
are now allowed by law for the transportation of criminals, to be certified by the judge of 
the district within which the arrest is made, and paid out of the treasury of the United 
States. 

Sec. 10. And be it further enacted, That when any person held to service or labor in 
any State or Territory, or in the District of Columbia, shall escape therefrom, the party to 
whom such service or labor shall be due, his, her, or their agent or attorney, may apply to 
any court of record therein, or judge thereof in vacation, and make satisfactory proof to 
such court, or judge in vacation, of the escape aforesaid, and that the person escaping 
owed service or labor to such party. Whereupon the court shall cause a record to be made 
of the matter so proved, and also a general description of the person so escaping, with such 
convenient certainty as may be ; and a transcript of such record authenticated by tho 
attestation of the clerk, and of the seal of the said court, being produced in any other 
State, Territory, or District in which the person so escaping may be found, and being ex- 
hibited to any judge, commissioner, or other officer authorised by tho law of the United 
States to cause persons escaping from service or labor to bo delivered up, shall be held and 
taken to be full and conclusive evidence of the fact of escape, and that the service or labor 
of the person escaping is due to the party in such record mentioned. And upon the pro- 
duction by the said party of other and further evidence if necessary, either oral or by affi- 
davit, in addition to what is contained in the said record of the identity of the person 
escaping, he or she shall be delivered up to the claimant. And the said court, commis- 
sioner, judge, or other person authorised by this act to grant certificates to claimants of 
fugitives, shall, upon the production of the record and other evidences aforesaid, grant to 
such claimant a certificate of his right to take any such person identified and proved to be 
owing service or labor as aforesaid, which certificate shall authurize such claimant to seize 
or arrest and transport such person to the State or Territory from which he escaped : Pro- 
vided, That nothing herein contained shall be construed as requiring the production of a 
transcript of such record as evidence as aforesaid. But in its absence, the claim shall be 
heard and determined upon other satisfactory proofs, competent in law. 

HOWELL COBB, 

Speaker of the. House of Representatives. 
WILLIAM R. KING, 

President of the Seriate, pro tempore. 

Approved, September 18th, 1850. 

MILLARD FILLMORE. 



PART FIRST. 



I. The Constitutional Provision — II. The Statute 
Provision — III. Review of Decisions. 



"The delivery of the property itself — its prompt and immediate 
delivery — is plainly required, and was intended to be secured." — Chief 
Justice Taney, in case Trigg v Com. of Pen., 16 Peters, 539. 

"But the right to convey is the necessary consequence of a right to 
delivery. The latter would be good for nothing without the former." 
Mr. Justice Wayne in the same case. 



The Act of Congress of September 18, 1850, relating to 
fugitives from service or labor, rests for its supposed author- 
ity upon a single clause in the Constitution of the United 
States. In e the language of that clause, we, accordingly, 
have an absolute test for the validity of this Act. If it does 
not perform what the clause requires to be done; or if it 
does what that does not authorise; it is unconstitutional. 
Let us, therefore, compare the provision of the Constitution 
and the provision of the Act. 
2 



10 

I. The Constitutional Provision. The portion of that 
instrument, which gives any authority to legislate upon this 
matter, is the third clause of the Second Section of the 
Fourth Article, in the following words : — 

" No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation there- 
in, be discharged from such service or labor ; but shall be delivered up on 
claim of the party, to whom such service or labor may be due." 

Raising no question for the present, as to who are the 
subjects of this clause, let us inquire what the Constitution 
directs shall be done with them. The words are not ambgi- 
uous. They are to " be delivered up to the party, to whom 
such service or labor may be due." 

1. There can be no doubt as to the place where this 
delivery is to be made. There must be an escape from one 
State into another, — a pursuit to the same State, — an arrest 
and claim there also; and when the claim has been estab- 
lished, there must be a delivery. It is not to be supposed 
that this last act has a dill'ercnt locality from those which 
precede it ; that the examination and decision are to be in 
one State, and the execution or delivery in another State. 
Indeed, some respectable jurists have supposed that the 
whole obligation of this clause rested upon the State where 
the fugitive is found.* — an opinion, which would have no 
foundation whatever, if the delivery wore not to be made 
within its own borders. The Acts of 1793 and of 1850 
b.uh follow this construction. Though the words of the 
latter are not consistent throughout, yet both statutes pro- 
vide thr.t the fugitive shall be placed in the hands of his 
master, immediately after the examination, and in the State 
where that is had.f The delivery of fugitives from justice 

* This was Mr. Webster's original opinion. See Speech in the Senate, 
March 7th, 18-50. 
t See Act of 1793, Sect. 3, and Act of 1850, Sects. 4 and 6. 



11 

under the clause in the Constitution in juxtaposition with 
this, it may be observed, also takes place in the State 
where the fugitive is found; and if there be any analogy 
between these two clauses, it undoubtedly extends far 
enough to make the place of delivery the same under both. 

2. This delivery completely restores the party to "whom 
such service is due" to his property in the fugitive's labor 
and his control over his person. 

The word <: deliver" has its peculiar legal force. It is 
an ancient word and of wide signification, coming down 
to us from the early days of Feudalism, and applying 
equally to real estate, to personal chattels and incorporeal 
hereditaments; and it has now the same signification, it had 
then, denoting the surrender by one and the entry of an- 
other into a right, the closing, not the commencing of a 
bargain. It was long regarded as the most notorious evi- 
dence of property in land; and it still has power to fix and 
determine the rights of parties. It is the delivery which 
completes the contract and transfers the possession from the 
seller to the buyer in case of sale. It has the same mean- 
ing in martial history. The defeated commander delivers 
to his victorious enemy, the citadel or fortress, or symboli- 
cally for the whole city, the keys of its gates. 

Used, as it is, in the Constitution without qualification, it 
cannot denote any restricted or imperfect right on the part 
of the master. So full, in fact, is the right secured to the 
master by this clause of the Constitution, that' the Courts 
have held that he may, even without legislation, anywhere, 
lay strong hands upon his fugitive servant, and by force 
carry him away. The Supreme Court of Massachusetts 
have so decided.* The Supreme Court of New York have 
taken the same view; and afterwards the Court of Errors 

*2 Pickering's Reports, 11. 



12 

for that State in the same case confirmed this ruling.* The 
Supreme Court of the United States say, "We have not the 
slightest hesitation in holding, that, under and in virtue of 
the Constitution, the owner of a slave is clothed with entire 
authority in every State in the Union, to seize and recap- 
ture his slave, whenever he can do it without any breach of 
the peace, or any illegal violence."! 

Indeed, this right of recaption is the first fact that meets 
us in the discussion of this subject; and it is a very signifi- 
cant fact. He may take his escaped servant, not by virtue 
of any official character, with which he is clothed, but as 
his own, in Ids own right; according to the Constitution, as 
he would take his minor child, and according to the com- 
mon construction of the Constitution, as he would take his 
stray horse. The simple fact, that he thus takes him 
as Ids own, without process of law, leaves no ground for 
argument, t!:at his right is restricted and special. It not 
unfrequently happens, that the master, having arrested the 
fugitive slave, proceeds to sell him to individuals anxious to 
procure his freedom ; and recently, if we may rely upon 
newspaper reports, the Supreme Court of Ohio have deeided 
that such a sale is valid, although the laws of that State 
recognise no such property; yet. say the Court, the right to 
sell arises from the right of recaption, most clearly regard- 
ing the right of the master as unqualified. Whether there 
has been such a decision or not, is of little consequence in 
this connection, as probably no one doubts the right of the 
master to sell ; and if he have power to sell, then his con- 
stitutional right cannot be limited and special. It must be 
perfect and absolute. 

The Courts have, accordingly, held the right of the master 

* Jack y Martin, 12 Wendell, 311 (321), and 14 Wendell, 507 (527). 
fPrig v The Com. of Penn., 16 Peters, 539, (613). 



13 

to be absolute and complete, not conditional and limited, 
The Supreme Court of New York say, " the owner has not 
only an unqualified right to the possession, but he has the 
guaranty of the Constitution in respect to it."* The Supreme 
Court of the United States, in the case before quoted, ex- 
press the same conclusion in still stronger language ; for they 
say, "The clause manifestly contemplates the existence of a 
positive, unqualified right, on the part of the owner of the 
slave, which no State law or regulation can in any way 
qualify, regulate, control or restrain : " and again, " the ob- 
ject of this clause was to secure to the citizens of the slave- 
holding States the complete right and title of ownership in 
their slaves as property, in every State in the Union, into 
which they might escape, from the State where they were 
held in servitude ; " and they also speak of the right of the 
master, as a positive right, independent of comity and con- 
fined to no territorial limits, and bounded by no State regu- 
lations or policy," as a right u to the immediate possession of 
the slave and the immediate command of his service or 
labor ; " and as if to put the matter beyond dispute, they 
declare, that, " the clause puts the right to the service or 
labor upon the same ground and to the same extent in every 
other State, as in the State from which the slave escaped, 
and in which he was held to service or labor."f 

By thus interpreting this clause of the Constitution, by 
following the word "delivered" in its full force, instead 
of attempting to substitute for it the force of some other 
words, the Supreme Court have, perhaps, avoided difficulties, 
not otherwise to be escaped. If, instead of giving to the 
master an absolute delivery, his right be restricted to a mere 
removal of his servant or slave to the State whence he 
escaped, we shall find : 

* Jack o Martin, 12 Wendell, 311 (321). 

t Prigg v The Com. of Penn., 16 Peters, 539. 



14 



First, That as soon as the master with the reclaimed 
fugitive in his possession, under a certificate that he is his 
servant, or as the Courts say, his property, shall mm aside 
from the route to the State whence, he fled, the cerrificate 
censes to secure any right to the master, and the slave be- 
comes free. The destination of the master with the re- 
claimed fugitive may be inquired into in every State 
through which he passes. It is not enough that he has 
from the lawful tribunal a judgement that the person in his 
custody, is his servant, or his slave, his property guarantied 
to him by the Constitution. He must give an account of 
himself. He must answer the question, ;: Where are you 
going with this property of yours? " 

If the slave escaped from Georgia, and the master at- 
tempts to carry him to Missouri, the slave may, in the Courts 
of Indiana or Illinois, bring an action for assault against 
his master for attempting to carry him thither: and the 
Courts must sustain it. and declare the slave free; for the 
right of the master under the certificate is limited, and he 
has overstepped its bounds. He may, even in the State 
where he has been arrested and decided to be a slave, bring 
this action, and the direction of the master's route, towards 
Georgia or Missouri, will be a question of fact for the jury 
to find. 

Secondly, If the escape was from Georgia, and the slave 
be found in Illinois, and the master has since removed to 
Missouri: lie cannot claim the right to remove the slave 
across the Mississippi to his new domicil in Missouri; but 
must carry him back to Georgia. 

These and similar difficulties the Supreme Court seem to 
have avoided, by adhering to the obvious intent of the 
clause. They started from the Constitution, which was 
their true point of departure: and in discussing the same 
matter, we must follow their construction and their example. 



15 

If the nature and effect of the proceedings in the case of a 
fugitive from labor, is in question before us, we must look 
to the same source of authority for instruction. If the trial 
in a case of successful claim between the claimant and the 
alleged fugitive terminate in the issuing of a certificate, we 
must, from the claure, gather what would be the nature of 
the fact certified, in a document of this sort answering the 
requirements of the Constitution ; and see what consequen- 
ces that fact legally involves. This must be the ultimate 
guide- in determining the authority and power of the mas- 
ter ; for Congress cannot confer upon him a right different 
from that which the Constitution declares, shall be secured 
to him. The Acts of Congress must provide for him the 
remedy pointed out in the Constitution, — the same remedy, 
— nothing more, and nothing less. The legal character of 
the fugitive before the Court must correspond to the descrip- 
tion in the Constitution, and the decision of the tribunal, in 
order to sustain the claim, must set forth that the claimant 
and captive mutually sustain the relation named therein; 
nor can the Courts or the statute, after this relation is proved, 
limit its legal foice. They cannot require a man to establish 
by process of judicial investigation a certain right, and then 
refuse to allow him the full legal scope of that right. The 
law knows no such nihil sequiiurs as this. 

What, then, is the fact to be stated in the certificate, and 
what is its legal force? The fact which the Constitution re- 
quires to be certified, is ; that the fugitive owes service or 
labor to the claimant in a certain State. Now the force, — 
the first force, — of this fact must be, that within that State, 
the master has a right, under the laws thereof, to exact this 
service or labor at the fugitive's hands. 

Secondly, it follows as a legal consequence, that the fugi- 
tive must become a slave not only within that particular 
State, but also in every other State which allows the sys- 



16 



tern.* For the characteristics of a slave are the same in all 
of the slave States. If a man is a slave in Georgia, he is, 
by the law of slavery, a slave in each of the other fourteen 
slave States. 

The certificate must set forth this fact, legally implying 
these consequences, in order to authorise a delivery of the 
fugitive into the hands of his master. Undoubtedly, this 
delivery carries with it the right of removal to the State 
where the fugitive is held to service or labor. It would 
seem also, that the right of removal would follow the con- 
sequential right to exact service in every State whose 
laws are similar, as well as the immediate right to do so 
in the State where he was held. It does not seem rea- 
sonable, that, afler the delivery of a slave to his master in 
Illinois, the latter shall be hindered from carrying him into 
the adjoining State of Missouri, simply, because he origin- 
ally escaped from Georgia. This limitation seems arbi- 
trary, and to have no foundation in the nature of the case. 
It is true, that, if the master takes the fugitive to a five State 
and there remains, the laws of that State will treat him 
as free. But it does not necessarily follow from this, that 
the master may not carry the slave who has been delivered 
to him, through that State, on his way to a slave State, even 
though it be other than the State from which he escaped. 
It is plain, at least, that, if he with the reclaimed slave finds 
himself in a State which recognises the relation, »he may 
there exercise all the power of a slaveholder; and the certi- 

* That is, if " held to service or labor," and being a slave, are in law one 
and the same thing. If they are not legally alike (and Commissioner Cur- 
tis has denied their identity), then the Constitution does not require the 
delivery of fugitives from slavery at all. — See trial of Thomas Sims, 28. 

The distinction between property in service or labor ; and property in a 
person who is said to owe service or labor, (if a person owned can owe), is 
not essential to the main purpose of this argument. In some places in the 
text it is retained, and in others allowed to disappear. 



17 

ficate, so far from restricting, will be conclusive confirmation 
of his ownership; for the essential facts which constitute a 
man a slave in any slave State, are judicially recognised in 
every other slave State, without any inquiry as to where he 
was first reduced to that condition. It is enough that he be 
born of a slave mother — the Georgia Courts will not recog- 
nise any difference in the locality, — whether it was in Geor- 
gia, or Virginia. It is also enough that the fugitive himself 
be actually a slave in any slave State ; and this is the fact 
which appears in the certificate. 

The language of Judge Story, sneaking for the Court in 
the great, leading case upon this subject, comes fully up to 
the support of this statement. He says: — 

" We have said that the clause contains a positive and unqualified recog- 
nition of the right of the owner in the slave, unaffected by any State law or 
regulation whatsoever, because there Is no qualification or restriction of It to be 
found therein ; and toe have no right to Insert any which Is not expressed, and 
cannot be fairly Implied ; especially are we estopped from so doing, when the 
clause puts the rlyht to the service or labor upon the same ground and to the same 
extent in every other Stale as In the State from which the slave escaped, and in 
which he teas held to service or labor. If this be so, then all the incidents to that 
rlyht attnch also ; the owner must, therefore, have the right to seize and repossess 
the slave, which the local laws of his own State confer upon him as property; 
and we all know that this right of seizure and recaption is universally acknowl- 
edged in all the slaveholding Slates."* 

There is no restriction of the master's right in the consti- 
tutional clause which provides for the delivery of the fugi- 
tive servant into his hands. There is no restriction : and 
the Supreme Court of the United States will not venture to 
insert any ; of course, then, inferior tribunals can insert 
none. A successful claim must result in the establishment, 
in the State where the fugitive is found, in the presence of the 
tribunal before which he is brought for an adjudication of 
his rights and liabilities, and by virtue of its decision, of the 



* 16 Peters, 613. 



18 

relation, between the claimant and the claimed, of slave- 
holder and slave, as under the laws of the State where he 
was held in slavery, — in an actual entrance into this rela- 
tion by a delivery of the slave to his master. 

It is true that this relation will not be permanently allow- 
ed yi a free State; but the tribunal has no right to insert 
this statement in its decision. The same would take place 
in England; but what has English law to do with the case? 
The case is not to be tried by English law, or Massachusetts 
law, or by the law of any State or country which deems all 
men free. How can a slave case be decided, or the force of 
a certificate that a person is a slave, be measured by the 
law of universal freedom ? In weighing the decision in the 
case of a fugitive from slavery, the question is, not what 
respect Massachusetts or any other free State, when their 
system of laws operates upon it with full force, will pay to 
it; but, what is its force under the Constitution of the United 
States, which is said to recognise slavery; and, of course, 
then, we must only ask, what will be its force in a slave 
State. How will it be interpreted in Georgia, Alabama or 
any other State which permits men to be held as Chattels? 
In a State of this latter character, there can be no doubt, 
that it will be allowed the same validity as in the State with 
reference to whose laws it was given. 

Precisely here, a distinction has been raised, between the 
force of the certificate and the force of the laws of the State 
under which the certified fugitive becomes a slave. It may 
be thought that the inability of the master permanently to 
hold the slave in a free State, arises from a limitation in the 
certificate; while it is said that the ability of the master to 
hold a slave in a slave State arises, not from the certificate, 
but from the laws of that State. This is to invert this dis- 
tinction. Undoubtedly, this power resides in the State 
laws; but that does not lighten the weight of the certificate. 



19 

When, after capital trial and sentence of death, the con- 
demned is hung, it is not the judgment of the Court that 
puts him to death ; it is the law. If it be otherwise, then a 
very common and current rhyme is at fault, and there is no 
truth in the old couplet, 

" No rogue e'er felt the halter draw 
With good opinion of the law." 

But what makes him subject to the law's grasp 7 What 
brings him within its penalty ? It is the solemn sentence of 
the Judge. So likewise, for the fugitive, the slave code 
sleeps, till the certificate secures him as its victim. This 
paper points out the subject of that code. This is the co- 
pula that fastens that system upon this man; and only as 
such a copula does any judgement act. Accordingly, a cer- 
tificate of the fact of slavery, ceases to make a man a slave 
in England, or permanently in a free State, not because it 
has lost its connecting power; but because there is no law 
of slavery which it can connect with the person certified. 
But in a slave State, retaining only the same copulative 
strength, it finds a system of law which it brings to bear 
upon the man, and thereby fixes his condition as a slave. 
In other words, and to make the legal distinction clearer, the 
certificate, nowhere, in the Union, at least, ceases to be evi- 
dence of the fact certified; but in some States and under 
some circumstances, the fact certified, even when conclu- 
sively proved, ceases to be of any avail to the master. 

From this it at once follows, that, under the construction 
of the Constitution which has been laid down by the Su- 
preme Court, the master having taken a delivery of his 
slave, may, by the force of that delivery, carry him through 
the slave States, any where, even to Cuba or Brazil; and 
the clause under which he is delivered, contains no lim- 
itation of his power, and of course, then the tribunal who 
adjudicates the case, can take knowledge of none. 



20 

Moreover, there are circumstances, which indicate that he 
has the same power of free passage with his reclaimed 
slave, through a line of free States. It is to be noticed that, 
in the extract above, Judge Story declares, that the clause 
places the master's right upon the same ground and to the 
same extent in every other State, as in the State whence he 
escaped ; and that the master has a right of recaption, pre- 
cisely as under the local laws of his own State. He lays 
down the principle, that the right of the master in the free 
State is the same as in a slave State. This is the rule cov- 
ering the point in discussion ; and the particular fact used 
in illustration, is worth examination of itself; for the master 
must have the same right by legal process that he would 
have by recaption. 

If the master proceed to recapture, can the State step in 
between him and his slave, and inquire into which of the 
other thirty members of the Union he means to carry his 
recaptured property? Can a slave State do this? If a slave 
State may not, can a free State make this inquiry ? If so, 
then the rights of a master over a fugitive slave are essen- 
tially different in different States of the Union, and the 
equal right, which it is said the Constitution meant to secure 
for him, does not exist. What is the value of the right of 
recaption, if, after it has been effected, the Courts of the 
State where it was achieved and the Courts of every State 
through which he passes, may, in turn, compel the master 
to come into its presence, and show that he means to carry, 
and is conveying the fugitive back to the State whence he 
fled. Is it not a more reasonable, more logical and more 
constitutional method of interpretation, to say that the mas- 
ter's right is absolute, and that its only limitation, is that he 
may not permanently hold a slave in a State whose laws 
do not allow the system of slavery ; and consequently has a 



21 

right to carry him anywhere, taking his own risk as to the 
validity of his title when he has reached his domicil ? 

But this extent of the right of removal, or of the right to 
exact service, is not essential to the argument. Suppose that 
there was but a single slaveholding State ; and, consequently, 
the ownership of the master and his light to remove, were 
confined to Georgia alone, for instance. This would not 
make the delivery any the less absolute. His slaves in 
Georgia are as absolutely his as his real estate which cannot 
be severed from its territory. That they may cease to be 
his slaves when he takes them into another State whose laws 
make them free, does not affect the legal nature of his title 
under Georgia's laws; and it is the laws of Georgia, accord- 
ing to which the issue between the claimant and the alleged 
fugitive is to be determined. It is Georgia's laws, the ex- 
tension of which in this particular class of cases, over all 
the Union, the Constitution intended to secure. So the 
Courts have declared. They have defined the right of the 
master under the third clause of the Second Section and 
Fourth Article of the Constitution ; and their definition does 
not seem ambiguous or equivocal. If there be any mean- 
ing in their words; if there be any force in this language 
of the highest judicial tribunals of our country ; it is this, 
that the master's possession and property in his reclaimed 
servant or slave, in the State whither he has fled and where 
he has been taken, is, under the Constitution, perfect, and 
needs no further act on his part and no further judicial pro- 
ceedings to complete it. " The delivery of the property 
itself," in the words of Chief Justice Taney — "its prompt 
and immediate delivery — is plainly required, and was in- 
tended to be secured." A delivery of property — as proper- 
ty — to its owner — absolutely and without restriction, is 
what the Constitution requires. 



22 



II. The Statute Provision. Let us now examine the 
Act of Congress of 1850, " to amend and supplementary to 
the Act entitled an "Act respecting fugitives from justice 
and persons escaping from the service of their masters, ap- 
proved February 12, 1793," in order, first to ascertain 
whether it secures to the master the unqualified right, which 
the Supreme Court have decided, was intended to be secured 
by the clause of the Constitution relating to this subject. 
Does it, without qualification and without restriction deliver 
to the master his fugitive servant? 

The 4th Section provides, that the tribunals to whose 
jurisdiction the matter is, by this Act, committed, 

"Shall grant certificates to such claimants, upon satisfactory proof being 
made, with authority to take and remove such fugitives from service or labor, 
under the restrictions herein contained, to the State or Territory from which 
such persons may have escaped or fled." 

The 6th Section provides that the Court, Judge or Com- 
missioner, before whom the fugitive shall be brought, shall 
upon satisfactory proof, 

£S "Make out and deliver to such claimant, his or her agent or attorney, a 
certificate setting forth the substantial facts as to the service or labor due 
from such fugitive to the claimant, and of his or her escape from the State 
or Territory in -which such service or labor was due, to the State or Terri- 
tory in which he or she was arrested, with authority to such claimant, or 
his or her agent or attorney, to use such reasonable force and restraint as 
may be necessary under the circumstances of the case, to take and remove 
such fugitive person back to the State or Territory from whence he or she may 
have escaped as aforesaid." 

If these words express the principal and sole right secured 
to the master by the statute; if a more important right 
than is expressed, is not implied in their meaning ; it will be 
seen at once, that these sections make no provision for an 
unqualified delivery of the servant to his master. They 
confer only a mere right of removal to a particular State ; 
and so they have beet* construed by the officers who have 
had to discharge the duties prescribed by this Act. In the 



23 

case of Thomas Sims, who was, in April of the present 
year, sent back from Massachusetts to (jJeorgia, under this 
Act, George T. Curtis, Esq., the Commissioner who issued 
the certificate, used the following language: — 

"It would seem, therefore, that it only remains to inquire whether the 
Act of 1S;50 authorises or requires anything more than a summary ministe- 
rial proceeding, in aid of the right secured by the Constitution, namely the 
right of removal. The statute, like the Act of 1793, requires the claimant to 
present to the Commissioner proof that the person whom he demands, owes 
him service in another State ; and when the Commissioner is satisfied of 
this, he is to grant a certificate which will authorise the removal" "The 
force and effect of the evidence required by the statute, must be limited to 
the object for which it is required ; and if that object be, as it clearly is, to 
establish the right of removal only, it cannot be extended to another and 
ulterior object, namely the right to continue to hold the party after he has 
been removed." 

Again, he speaks of the proceedings as "clearly designed 
to be ministerial and to secure only the limited rigid of re- 
moval." And in another place, " Entertaining therefore a 
very clear opinion that these proceedings are ministerial, 
and that it is perfectly competent to Congress to authorise a 
magistrate, appointed by the authority of Congress, who is 
not a judge, to make this judicial inquiry for this special 
and limited jmrpose" that is, of removal. 

In the trial of James Scott, indicted for aiding in the 
rescue of Shadrach alias Frederick Minkins, a person held 
under the provisions of the Act of 18.50, Judge Sprague, in 
his 4 charge to the jury, sustained the opinion of Commission- 
er Curtis: — 

" The certificate, of itself, gives no authority whatever to treat the party 
as a slave. It is merely a warrant to remove him to a certain place." " The 
certificate is simply an authority for transportation, nothing more." " It is 
merely an authority to carry the person named from one State to another." 

These extracts from the opinions of Judge Sprague and. 
Commissioner Curtis, so far as they are correct, and the pre- 
vious extracts from the Act itself, so far as they are substan- 



24 



tial provisions affecting the purpose of the statute, leave us 
in no doubt as to the right secured to the master of a fugi- 
tive from service under its sections. It is only the right of 
removal. It is a right special and limited — confined to a 
certain line of travel. Simply a transportation from one 
State to another. It does not secure to the master the im- 
mediate possession of the slave and the immediate com- 
mand of his service, which he would have by recapture — 
" the positive, unqualified right" — " the complete right and 
title of ownership in his slaves as property, in every State 
in the Union into which they might escape, from the State 
where they were held to servitude " — " a right confined to no 
territorial limits," which, the Supreme Court have declared, 
was intended to be secured by the adoption of the clause in 
the Constitution, in relation to fugitives from service. It does 
not, like that clause, "put the right to the sen ice or labor 
upon the same ground and to the same extent in every other 
State as in the State from which he escaped, and in which 
he was held to service or labor." It does not secure the 
delivery of the servant to his master as his own, in his own 
right, which the Constitution had guarantied to him; but 
substitutes in its stead, the right of removal which the Con- 
stitution has never conferred. It is an Act of Congress, 
which is liable to the full force of the objection, which Judge 
Story urged against the probable provisions of local legisla- 
tion, as a reason for considering the jurisdiction over this 
subject to be vested in the national, and not in the State leg- 
islatures, "leaving the owner, at best, not that right which 
the Constitution designed to secure — a specific delivery and 
repossession of the slave."* It does not perform what the 
clause under which it has passed requires; and it does what 
that clause does not authorise. It utterly fails to fulfil what 



* 16 Peters, 614. 



25 

has without stint or forbearance, been urged upon us as 
citizens, as a great constitutional duty, to wit: the delivery 
of fugitive servants to their masters. In its stead it imp 
an unconstitutional usurpation. It is, therefore, an uncon- 
stitutional statute. 

This view will be confirmed by reading the Oth Section of 
this Act, where the failure of the statute to provide for a 
constitutional delivery in the State where the fugitive is 
found, shows itself in the adoption of another unconstitu- 
tional provision. According to that Section, in case of an 
apprehended rescue, the Federal officer making the arrest, 
must convey the fugitive to the State whence he fled, and 
be paid therefor from the United States Treasury. This 
provision has no sanction, but a plain condemnation, even if 
there were a complete analogy between the delivery of fugi- 
tives of the two classes — from justice and from service: 
for by the Act of 1793, the State demanding is required to 
convey the fugitive from justice to its own jurisdiction, and 
to pay all the costs of the apprehending, securing and trans- 
mitting. Here, in this Section, we have at last, what Roger 
Sherman, in^the Constitutional Convention, declared ought 
not to be provided for by that instrument; and what is of 
weight with us, what the Convention framed the Constitu- 
tion, purposely so as to avoid — the carrying back of fugi- 
tives from service at the public expense. 

Furthermore, this provision is incongruous with the idea 

of service, and mors so with that of slavery. Few can 

have failed to notice, in the case of Thomas Sims before 

alluded to, that the method of his conveyance little suited 

the character in which he was transported. He was carried 

away as a prisoner of State; a great chieftain captured in 

war; a hero at last overcome. The idea of degradation 

and servitude is put to flight by the dignity which invests 

the captive. A few more such renditions as this, and 
3 



26 

slavery will be abolished, is the thought of earnest Aboli- 
tionists. The citizens of Savannah, on the other side, per- 
ceiving the incongruity, speak bitterly of the return from 
Boston, of the "African lion;" and complain that the 
"pomp and circumstance" of his taking and bringing back 
had spoiled the negro. Undoubtedly, much of the intense 
interest which attached to Sims, was owing to the humane 
sympathy manifested for him by the friends of freedom, and 
their efforts for his protection. At least, they accomplished 
this : they elevated the character in which Sims stood before 
the country, from that of an escaped slave, to that of a man 
in whose wrong, the whole body politic received a wound. 
But the fact now to be noticed, is that the letter of the 
statute lent them aid, by sending him back in the custody 
of the officers of the law, instead of delivering him into the 
hands of his master ; and so far it is unconstitutional. 
There is but a single method of constitutionally conveying 
a reclaimed servant from one State to another. He is to be 
delivered up to the party to whom his service or labor is 
due ; and then, if that party shall see fit to transport him 
elsewhere, let him do so under his own control, at his own 
expense ; and let him have from the government whatever 
escort is necessary to protect him in the quiet possession of 
his servant, nothing more. The Constitution requires a 
delivery, which may be followed by an escort : the uncon- 
stitutional statute refusing or delaying to deliver, provides a 
conveyance. 

Will any one say, that a delivery of the person, and the 
granting of a certificate which merely authorises a removal 
from one State to another, are legally one and the same 
thing? If so, " Under which king Bezonian?" Is the 
unqualified right a qualified one ? or is the qualified an un- 
qualified right? and which shall fix the charter of the 



27 

previous proceedings, the limited right of removal or its 
equivalent, an absolute delivery ? Hut, seriously, the differ- 
ence is too broad to need demonstration. It is recognised by 
Mr. Justice Wayne, in the passage, placed at the head of 
this portion of this argument; and the view adopted by him 
is followed in these pages, viz : that the right of removal 
necessarily flows from the delivery; that they are different, 
the one greater and the other less and included in it ; and 
so cannot be substituted, the one for the other. According 
to him, both are incidental rights arising from the right of 
property: the one expressly guarantied in the Constitution 
as the master's remedy, the other by necessary implication 
arising therefrom. He says, " But the right to convey is the 
necessary consequence of a right to delivery. The latter 
would be good for nothing without the former." But the 
Act of 1S50, as it has been construed, does not give the 
delivery and the right of removal as its necessary incident ; 
it attempts, at best, to substitute the latter for the former, as 
though the latter, not the former, were the right guarantied, 
by the Constitution. 

Not only is the statute so construed as- to attempt to de- 
prive the master of the delivery, which under ths Constitu- 
tion he has the right to claim ; but even the removal which 
is allowed to him, is not, if the language of the tribunals be 
understood in its most obvious sense, such a removal as that 
instrument implies; but altogether a different affair. Ac- 
cording to the interpretations of the Act of 1850, this re- 
moval is a ministerial act, like the removal of a fugitive 
from justice, for the special and limited purpose of further 
judicial proceedings; and the master or other person remov- 
ing, acts, as it were, in an official character. Hut, accord- 
ing to the Supreme Court, the master has a right to remove, 
as owner; because he has property in the person to be re- 
moved ; and the purpose of the removal is not special and 



2S 

ministerial, but private and unrestricted; simply that he 
may have the free use and enjoyment of his property, that 
he may receive the service due from his servant. 

III. Review of Decisions. It is not a correct, nor if it 
were correct, would it be a sufficient answer to this argu- 
ment, to say that the Act of 1793 was liable to the 
same objection; and that the Supreme Court of the United 
States, and the Supreme Courts of several States have de- 
cided that " to be clearly constitutional in all its leading pro- 
visions ; " and hence, the Act of 1850 must also be faultless 
in this respect. In general, it is not correct, because the 
question of the constitutionality of its leading provisions, as 
the statement following will show, was never raised in a case 
awaiting their decision ; and they have never examined 
or professed judicially to examine its particular provisions ; 
and, therefore, it is impossible for them to have decided that 
they were all clearly constitutional. In particular, it is not 
correct, because the Court was never called upon to set aside 
the Act of 1793, on the ground that it did not secure to the 
master the right guarantied to him by the Constitution. 
Besides, it is insufficient, because subsequent decisions have 
sustained the constitutionality of the principal provisions of 
the Act of 1793, only by assigning to it a different purpose 
and object from that presumed in the reasoning of that tri- 
bunal ; and the Court could not adhere to such a decision, 
after it is shown that the statute secures to the master a 
right, altogether different from that, which, they have delib- 
erately decided, was the intent of the Constitution. 

The clause of the Constitution relating to fugitives from 
labor, was for the first time, brought before the Supreme 
Court of the United States, for adjudication, in 1842, in the 
case before alluded to* The facts of that case, pertinent to 

* Prigg v the Commonwealth of Pennsylvania. 



29 

the present discussion, were substantially as follows : That 
Commonwealth, as the result of an amicable conference 
with Maryland, the adjoining slave State, had passed a 
statute prescribing the manner in which a person, to whom 
service or labor was due in another State, should proceed in 
reclaiming the person who had escaped from such service 
into the State of Pennsylvania. Prigg had seized and re- 
moved a person held as a slave in Maryland, found in Penn- 
sylvania, without complying with the provisions of Penn- 
sylvania's statute, and was accordingly indicted for a viola- 
tion of her statute against kidnapping. The constitutional- 
ity of the Pennsylvania statute was the question directly 
before the Court. In determining this, however, they en- 
deavored to ascertain the nature of the right which the 
Constitution intended to secure to masters of persons escap- 
ing from service; and then, from this as a starting point, to 
determine : 

1. Whether the power to legislate under that clause was 
vested in the national or State legislatures ; 

2. Whether Congress, if the power was vested in that 
body, held it exclusively. 

Their first step was to interpret the clause of the Consti- 
tution; to define the right therein secured to the master. 
This was the Alpha of the whole matter; and they could 
not go forward at all, towards a sound conclusion, without 
first fixing the meaning of the constitutional clause under 
which the question before them arose. 

Accordingly, they proceeded to fix the meaning of that 
clause, and to define the right which it intended to secure to 
the master of a fugitive from service. They deliberately 
and unanimously declared, that the object of this clause was 
to secure to the slaveholder "the complete right and title of 
ownership in his slaves as property in every State in the 
Union into which they might escape." He had guarantied 



30 

to him by the Constitution, the right to an unqualified deliv- 
ery of his property, wherever it was found. His right was 
the right of property ; " the complete right and title of own- 
ership; " u the right of the owner to the immediate posses- 
sion of the slave and the immediate command of his service 
and labor;" a right so unlimited, that, wherever he may 
find the slave, he may seize him, and carry him away as a 
piece of his property. 

The next case that brought this clause before the Court, 
and the last, unless another was argued at their last session, 
was the case of Jones v Van Zandt.* Here, again, the 
slaveholder's right of property was recognized and reassert- 
ed; and his right to pursue and retake, fully acknowledged. 
It cannot be said that this construction of the constitutional 
clause, in these two cases, is an obiter dictum. There were 
obiter dicta enough in the Prigg case, as those who have 
endeavored to construe the principles of its decision most 
favorably to the slaveholder, have more than once found 
occasion to remark. But this definition of the slaveholder's 
right was not among them. This must be considered as 
settled by their authority ; and even without their authority, 
it is submitted that no other interpretation could be sup- 
ported. 

There is, however, another portion of their decision in the 
Prigg case, which must not be passed over in this connec- 
tion. In determining that the power to legislate under this 
clause existed in Congress, Judge Story, giving the opinion 
of the Court, brought forward as the last reason in support 
of that opinion, the passage by Congress of the statute of 
1793, as an instance of contemporary construction, and 
adduced the decisions of several State Courts in favor of its 
validity; and then, he maybe said to have concluded his 

* 5 Howard, 217. 



31 



reasoning upon the power of Congress to legislate, by de- 
claring, that, without resting upon prior decisions of State 
Courts, but sua sentaitia, "We hold the Act (of 1703) to 
be clearly constitutional in all its leading provisions, and, 
indeed, with the exception of that part, which confers au- 
thority upon State magistrates to be free from reasonable 
doubt and difficulty, upon the grounds already stated." In 
the Van Zandt case, the constitutionality of the provisions 
of the Act of 1793 was considered as settled by the Court in 
the Prigg case, and was not therefore examined. This de- 
cision is what in Greek would be called an enclitic, leaning 
upon something that precedes it, and of course adding no 
weight of authority to the previous decision, upon which 
alone we must rest. 

It must be recollected, that, in the Prigg case, the question 
of the constitutionality of the provisions of the Act of 1793, 
was not before the Court ; that the counsel for the defend- 
ant in error did not raise and press upon their consideration, 
any objection to any of its provisions; that the question they 
had to determine, did not depend upon their validity; that 
the counsel for the plaintiff in error, did not even allude to 
any of the features of the Act of 1793, which are now the 
subjects of contention in connection with the Act of 1S50, 
and only, in the most general maimer, assumed the constitu- 
tionality of that Act; that the Act of 1793 was brought for- 
ward as an element in the discussion, simply for the pur- 
pose of showing that Congress had power to legislate under 
this clause ; that the only objection to its constitutionality, 
stated by Judge Story and considered, was the objection, 
that the power of legislation was not in Congress; that this 
was not one of the questions which the Court proposed to 
itself to settle, in order to determine the case; nor did they 
have to decide this, in order to reach the answer to any of 
those questions; for, the conclusions previously reached by 



32 



the Court, that this clause vested legislative power in Con- 
gress alone, rendered it unnecessary for them to inquire, 
whether the statute of Pennsylvania conflicted with the Act 
of Congress, and then, whether the latter was constitutional 
in its provisions, as they thereby determined the former un- 
constitutional ab initio, from want of power in the State 
legislature to enact it; but on the contrary, after they had 
reached the conclusion that Congress had the power to legis- 
late upon this matter, they went on, without legal or logical 
necessity, to remark that this Act of Congressional legisla- 
tion was, in their view, in perfect accordance with the Con- 
stitution. It is also worthy of notice, that, when Mr. Justice 
Wayne came to re-state in a formal manner the decision of 
the majority of the Court, in order that he might give his 
own reasons for concurring, he did not include the opinion, 
that the Act of 1793 was constitutional, because he did not 
understand that any such had been expressed, for he delib- 
erately attempted to repeat, point after point, all that they 
had decided ; and that Mr. Justice Daniel spoke of the Act 
of 1793, "so far as it conforms to the Constitution," most 
plainly implying that the extent of its conformity with that 
instrument had not been determined. Now in the face of 
these facts, it seems clear, that, if there was an obiter dictum 
in this case, this was one. If in the report of this case, there 
is any opinion which may be considered as uttered without 
the deliberate sanction of that tribunal, it is this, that the 
Act of 1793 was, in all its leading provisions, clearly consti- 
tutional. 

But, giving to this expression of the Court even more 
weight than properly belongs to it, and considering all the 
decisions of State Courts in favor of the constitutionality of 
summary, ministerial proceedings in the case of an alleged 
fugitive from service, let us follow further down the current 
of decisions in relation to this matter. The Supreme Court 



33 

fixed as their starting point, the doctrine that the Constitution 
secured to the owner the unqualified right of property in 

the fugitive, in the State where lie was found, and guaran- 
tied to him his unqualified delivery. But, upon able argu- 
ment against the Act of 1S50, which requires only such 
summary proceedings, and an earnest pressing of objections 
against particular provisions of this Act, in the hearing of 
Commissioner Curtis, it is found that this summary pro- 
ceeding can only be sustained by ruling that the Act merely 
secures to the master the limited right of removal. Judge 
Sprague, upon a deliberate examination of the matter, con- 
firmed this view of Commissioner Curtis; and if I mistake 
not, other tribunals have been compelled to resort to the 
same reasoning, in order to justify the absence of both judge 
and jury in the determination of the question, which arises 
between a claimant and an alleged fugitive from service. — 
Thus ruling, they have gone counter to the solemn decisions 
of the Supreme Court of the United States, and of all other 
tribunals, in regard to the right secured to the master by the 
Constitution. They have even overruled their own reason- 
ing in the very cases where they have advanced this opin- 
ion; for they habitually recognise the right of recaption, 
and if that exists, the master's right is unlimited. They 
construe the Act of 1850 to provide a remedy entirely differ- 
ent from that, which the Supreme Court had in mind, when 
they alluded to the Act of 1793; and then attempt to make 
those allusions conclusive authority in favor of the Act of 
1S50, under their opposite interpretation. In order to escape 
the force of arguments against the constitutionality of the 
Act of 1S50, based upon individual features of that Act, 
they have ruled it to be unconstitutional in its whole scope 
and object. 

There is even a more striking contradiction than this, in 



34 

the decisions of the Courts in relation to this subject. Two 
opinions, diametrically opposite, are stated by different tri- 
bunals in the same case, and yet, both enforced as correct 
constructions of the same document ; the opinion of the 
higher tribunal; adopting, without hesitation, the interpreta- 
tion of the Constitution advocated in these pages ; and the 
contradiction showing, that the decisions of the Courts upon 
this subject, are not clear and harmonious ; but careless, 
confused and palpably in conflict with each other. 

I refer to the case of Thomas Sims. In the Boston 
Courier of April 19, 1850, it is stated that Sims was brought 
before Judge Woodbury of the Circuit Court, upon a writ of 
habeas corpus^ to allow an examination into the sufficiency 
of a criminal warrant issued against him, and the delay of 
the Marshal in not having him examined upon said warrant. 
In the hearing the next day, 

" Mr. Sewall, as counsel for Sims, moved the Court to appoint a person 
to serve a writ de homine rcplcgiando, issuing against the Marshal, for Sims, 
and urged it as requiring immediate attention. 

Judge Woodbury advised delay till the writ of habeas corpus was dis- 
posed of. 

Seth Thomas, Esq. then objected to Mr. Sewall's acting, in this new case, 
as counsel for the prisoner ; the Commissioner having decided this forenoon, 
that Sims was a slave, and having given a certificate and order to send him 
to Georgia whence he escaped, he was now under the control and advice of 
his master and agent, for whom Thomas, and not Sewall, was counsel. 

The Marshal then read an additional return setting out this certificate and 
decision of the Commissioner to-day. 

Judge Woodbury said, that these papers must decide the point, that Mr. 
Thomas now had the better right to appear in behalf of the master and Sims 
unless Mr. Sewall objected to the constitutionality of the laws under which 
the Commissioner had acted. If he did, an opportunity would be given to 
be heard on that point, and it would then be decided. 

Mr. Sewall did not wish to go into that argument, now, on this motion ; 
and the Judge then said, the laws must be presumed constitutional till the 
contrary was shown and adjudged, and consequently Mr. Thomas had note a 
right to act on this motioji as to the writ de homine, rather than Mr. Sewall." 



35 

It will be recollected that Commissioner Curtis, in issuing 
the certificate, had emphatically insisted, that it conferred on 
the master only the limited right of removal; and Judge 
Spraguc, afterwards, following the same opinion, declared* 
" The certificate, of itself gives no authority vhatcver to 
treat the party as a slave.'" Yet, when the certificate is read 
before a Justice of the Supreme Court of the United States, 
and he is asked to interpret its force, he decides, that it at 
once establishes between the claimant and the fugitive, the 
relation of slaveholder and slave, "to the fullest extent;" 
the limitations he immediately afterwards mentioned, being 
such only as he supposed to be recognised by the laws of 
slave States. The fact set forth in the certificate was pow- 
erful enough to merge the legal being of Sims in that of his 
master, to leave him no personality whereby he could even 
appear in Court, and ask for a process to cause a re-examin- 
ation into the correctness of the certificate. It put into ac- 
tual operation on the soil of Massachusetts, the worst princi- 
ple of the slave code, which in some States is declared to 
deem the slave pro nullis, pro ?nortuis. Then, to justify 
this opinion, he further said, '• when slaves escape to such 
States as Massachusetts, from other States still allowing the 
institution, they are still slaves, both by the Constitution and 
the acts of Congress;" not persons whom some other per- 
sons have the limited right of removing into another State, 
but slaves, by the Constitution and the acts of Congress. 

Hastily as it may have been given, this opinion, com- 
pletely refuting all that Commissioner Curtis had said about 
the limited force of the certificate, is too emphatic and de- 
cided to be disregarded. How shall we explain this striking 
discrepancy between the Judge of the District Court and the 
Commissioner on the one side, and the Judge of the Circuit 
Court on the other? It is only an instance of the confusion 



33 

of the Courts in this matter, tokens of which are elsewhere 
apparent : a specimen of two entirely different sets of rul- 
ings, which may now be discovered, and which apparently 
promise long to continue their irreconcilable opposition ; one 
set being founded upon the provisions of the Constitution, 
and the other upon the unconstitutional provision or con- 
struction of the Statute. To the first class belongs this 
opinion of Judge Woodbury's, being based upon the Consti- 
tution, at least, so far as it differed from the opinion of Curtis 
and Sprague, in regard to the force of the certificate. His 
attention had not been directed to the words of the statute, 
and they were not in his mind. He knew, however, or 
rather thought (for a more familiar acquaintance with the 
practice under the Act of 1850, would, probably, have con- 
vinced him of his error in this respect) that a man could not 
legally be taken as a slave, until it was proved that he was 
a slave; and this fact established, he was, of course, to be 
treated by the Courts, as a slave. He knew that the Con- 
stitution requires, that fugitives from service <: shall be de- 
livered up," and he had no hesitation in concluding that the 
intent was as most clearly it is : — 

1. That the delivery be made in the State where the 
fugitive is found ; and 

2. That this delivery shall completely restore the party 
to whom such labor is due, to his property in the fugitive's 
labor and his control over his person. 

Hence it follows, " as the night, the day," that so far as it 
is true, that the Act of 1850 secures to the master only " the 
limited right of removal " of his fugitive servant, so far it 
is palpably at variance with the clause of the Constitution 
upon which it purports to be based. American Courts be- 
fore this, through want of due consideration, may have pro- 
nounced statutes constitutional, which were not so : but one 



37 

feels safe to assert, that they never before 1*~A, construed a 
statute into direct conflict with that instrument, fur the ex- 
press purpose of sustaining it.* 



* After -writing thus far, I was glad to find, that the statement of the 
right guarantied by the Constitution to the person to whom service or labor 
may be due, which this essay contains, agreed with the definition given by 
Charles G. Loring, Esq., in his able and unanswerable argument before 
Commissioner Curtis.— See Trial of Thomas Sims, 28-33. 



PART SECOND. 



I. The Character of the Proceeding — Not Prelim- 
inary, but Final. 

II. The Method of the Proceeding — There must be 
Due Process of Law. 



"But the right to convey is the necessary consequence of a right to 
delivery. The latter -would be good for nothing without the former. 
Proof of ownership gives both, if it gives either or any thing — Mr. 
Justice Wayne in the Prigg case. 



Having endeavored, in the first portion of this essay, to 
ascertain what is the right secured to the master by the 
clause of the Constitution which relates to this subject, let 
us from that definition, now proceed in the discussion of the 
provisions of this statute. The construction of the purpose 
of this statute adopted by Commissioner Curtis and Judge 
Sprague, may, in the course of further judicial examina- 
tion, hereafter be set aside as incorrect, and the statute 
may be declared to provide a delivery, as the Constitu- 
tion requires. In case, then, that the statute should be 



40 

thus construed into conformity with the Constitution, so far 
as its main purpose is involved, let us see if the means it 
prescribes for the supposed delivery, and the steps it takes 
toward that act, are not as objectionable, and do not make 
the statute as unconstitutional, as it is with the purpose 
ascribed to it by those tribunals. This method of investi- 
gation at least, may commend itself to the reader; for it has 
the sanction of the Supreme Court. The arrangement of 
this argument is their arrangement. Its first principles are 
their first principles; and upon these, and according to these, 
it attempts to find an answer to the questions which remain, 
to determine the nature of the proceeding, and the method 
and agencies by which it should be conducted. 

I. The Character of the Proceeding. It is not easy 
always to understand the tenor of the arguments advanced 
to show that the proceedings in the case of a fugitive from 
service are not judicial. Sometimes, the upholders of this 
statute compare them with acts entirely executive in their 
character; but they do not mean to assert an entire similar- 
ity between the two; for that would imply that Congress 
had committed an egregious error in entrusting to the Courts 
and their ministerial officers, duties which properly devolved 
upon the executive authority of the United States, or of the 
several States, one hardly knows which. If they have any 
distinct notion upon this matter, I have preferred to assume 
that it was this, viz: that the proceedings under the Act of 
1850 are judicial in their nature, but not fully judicial in 
the constitutional sense of that term; not judicial "to the 
fullest extent;" but only quasi, semi judicial; that they 
are in exact terms, the preliminary part of a judicial pro- 
ceeding. This interpretation renders their arguments some- 
what intelligible ; and removes some contradictions other- 
wise irreconcilable. 



41 

This is the view taken (incidentally stated) by the counsel 

for the State of Maryland, in the Prigg case. He says:* — 

" It provides for the preliminary examination of a fact, for tho purpose of 
authorising a delivery and removal to the jurisdiction most proper for the 
final adjudication of that fact ; to tho State on the laws of which the claim 
to service depends." 

Also Mr. Webster, on the 15th of May, lS50 r and in the 
first part of his letter " To Citizens of Newburyport," stated 
the same position. f So far, he declared, the delivery of fugi- 
tives from justice and that of fugitives from service, were 
similar; and this is what Judge Sprague and Commissioner 
Curtis seem to mean, when they talk of an essential analogy 
between the two clauses of the Constitution providing for 
the delivery of each. To understand them to assert more 
than this, is fatal to their argument; and, though the fuller 
assertion is hereafter treated, yet the modification probably 
does contain, and for the present, is considered as containing, 
their real meaning. 

It is not difficult, however, to understand why these pro- 
ceedings are said to be preliminary. One may wonder that 
Courts and officers of law, anxious to serve the purposes of 
slavery, should, as has been shown, unwarrantably limit the 
right of a master of a fugitive from service. It is, because 
this interpolation of a :i limited right of removal," is thought 
to make the proceedings preliminary. They are considered 
to be of that character, because they are said to result in. 
giving to the master only a limited right to remove his slave 
back to the State whence he fled, to terminate in conferring, 
as Judge Sprague says, "an authority for transportation, 
nothing more." But it has been shown, if the preceding 
part of this argument be correct, that the Constitution knows 
no limited right of removal ; and that, therefore, so far as 

* 16 Peters, 5 03. 

t Works of Daniel Webster, Vol, II, 568. 

4 



42 

this process of reasoning is necessary to determine the char- 
acter of the proceedings, they cannot be preliminary, under 
the Constitution, nor under a constitutional statute. The 
absolute delivery, which that instrument requires, makes 
them final. 

Before, however, we make any use of this conclusion to 
carry forward the argument, there is open to us, another 
view of the question. Let us inquire, whether, without any 
reference to the words of the constitutional clause, simply 
under the statute, there is that which will allow us to deem 
the proceedings preliminary, whether the removal which it 
provides, is such a removal as alone can make them of that 
character, whether it does not involve the whole question at 
issue between the parties, and lead them into their respective 
final relations; whether the statute does not actually provide 
for a delivery, somewhere, and at sometime in the process. 
The interpreters whose construction has been cited, may 
deem that they only erred in adhering too closely to the Act 
of Congress, and in forgetting the phraseology of the Con- 
stitution. But let us see, whether they followed the statute, 
whether they carefully read all its sections, and correctly 
defined the plainest legal differences. If we go over ground 
already occupied by able men, who have, with forcible and 
sound argument, attacked this Act of Congress, it will only 
be, to repeat and confirm their positions, to show that their 
objections to its constitutionality have been evaded, not 
answered, and that they are, in fact, unanswerable. 

The proceeding is not preliminary — not so under the 
Constitution, as has been shown ; nor even under the Act of 
September 18, 1S50. 

Preliminary is not an adjective that supports itself; it 
requires an adjunct. A preliminary proceeding must be 
preliminary to something else, and that, not a placing of one 
of the parties in the enjoyment of the right in dispute, with- 



43 

out limit, but to some further legal investigation. Its deter- 
mination must tend towards that further investigation* The 
officer must know what the tribunal is, before which the 
final proceeding is to be had; and his decision, or whatever 
act or paper closes the proceeding before him, must recognize 
that tribunal, and his relation to it. These are the essential 
characteristics of every preliminary proceeding; in the dis- 
cussions under this act, they have been entirely overlooked, 
and thus, the distinction between preliminary and final has 
been missed. 

So is it with the ordinary offices of a United States Com- 
missioner. He may take bail and affidavits in civil cases. 
That is, he may take the agreement of one person to answer 
for the appearance of another person, before a certain speci- 
fied United States tribunal, at a specified time, to answer to 
a certain action already commenced; or he may take an 
affidavit to be used in the same, or in some step ancillary to 
that process. He may take depositions, or imprison persons 
for trial in the Courts of the United States. In these cases 
he knows the Court and the term of the Court, the case, and 
the parties who are to appear in that Court. These facts 
are brought to his knowledge, in the papers upon the author- 
ity of which he acts; and they appear in those which con- 
lain the result of his action. So is it with the executive 
authority of a State, when he delivers up a person charged 
with crime. Likewise, the Sheriffs, Auditors and Commis- 
sioners of Insolvency all know the Courts, to whose final 
adjudication their proceedings are preliminary. They act 
under the eye of the .Court ; they have the questions com- 
mitted to them by the Court, and when they have concluded 
their examination, they make return to the Court. Their 
proceeding?, from beginning to end, are a part of the Court's 
proceedings, and so, at once, the papers will show. It is a 



44 

privilege of these officers that they know what they are 
about.* 

But the Commissioner, who certifies that the captive be- 
fore him is a fugitive from service, does not know, from the 
papers in the case, that there is to be any further legal pro- 
ceedings of which his examination is to be a preliminary 
part; the act of Congress which he is administering, knows 

• 1 have omitted any reference in the text to another officer, whose duties 
have been considered as analogous to those of a tribunal called upon to 
decide between a claimant and an alleged fugitive from service, the Commis- 
sioner of Patents. (See Commissioner Curtis's Opinion, Trial of Thomas 
Sims, 41.) It is certain, that the remarks offered in regard to the other 
officers named, will not apply to him. He, surely, makes no return of his 
doings to any Court. The argument deduced from this office, I may as well, 
perhaps, frankly confess to be unanswerable as to attempt to refute it. But 
what I cannot assail as an opponent, may I not, in a friendly spirit, venture 
to criticise ? May I not suggest, that precisely here, where that phrenolog- 
ical faculty was most needed, breadth of comparison failed the Honorable 
Court ? May I not offer to supply an illustration, which escaped his mind, 
and which will exhibit the full force of his reasoning ? 

If I mistake not the facts, the Legislature of Massachusetts has offered a 
reward of ten thousand dollars to the person who shall discover the true 
nature of the disease, which has, for some years, so terribly raged among the 
potatoes ; and, if I am further correctly informed, the Governor of the State 
is to decide to whom this reward rightfully belongs, and to give to that indi- 
vidual a warrant for its payment. Now this is most clearly a case of a decision 
(irreversible even, I presume) of a right, and that too the very right so often 
alluded to in this essay, the right of property, by an officer who is not a 
judicial officer. This cannot be denied, and that class of politicians who 
complain loudest of the Act of 1850, will find a counterpart to one of its 
most objectionable features, in their own legislation. 

When the attempt has been made to point out any essential difference 
between this duty of the Governor, and the decisions of the Commissioner 
of Patents, I may, if there remains any necessity for such a demonstration, 
feel called upon to show, by serious argument, that it is a mockery of law to 
attempt to reason from the distribution of governmental favors and rewards, 
to the administration of justice, between contending parties. 



45 

none such; and he is not sure that the statutes of Georgia 
provide'for any ; he does not know, however, but that there 
is a trial there allowed. He does not commit the captive to 
the officers of law at all, much less, with orders to have him. 
at a certain time, in presence of a Court. Yet, still he thinks 
this proceeding is preliminary; he is certain that he is per- 
forming only a ministerial act; though from the statute he 
knows no tribunal having final jurisdiction over the case, to 
which his act is to be returned. He does not know the Court 
to which he is humbly ministering. He doe^ not find its 
title in any of the documents; he has forgotten his spectacles, 
and is not very good at remembering names. Just at this 
moment, it has slipped his mind, and he will have to omit 
it in the certificate. 

Were any other ministers ever made to work in such doubt 
as to what they were doing, such Egyptian darkness as to 
their duty, as these eclipsed Commissioners'? Did any other 
legal officer ever have to make bricks without straw like 
this ? Had ever ministers of law or gospel such need of 
faith before '? In the centuries of legal procaedings from the 
earliest days of England until September, 1S50, did an officer 
of law ever pronounce his own proceeding to be preliminary, 
when he did not know that it was so, and to what it was pre- 
liminary? Did one ever decide the character of his own 
act from mere guess, and upon probability? Before these 
unselfish Commissioners, who go forward with such childlike 
confidence, was there ever an officer of law, who would not 
refuse to act, if he did not clearly understand whether his 
act was to be preliminary or final ? 

But, it is said, there may be a trial in Georgia. By this 
statement, it may be intended that we should understand, 
that, after the master has recovered the fugitive according to 
the provisions of the Act of Congress which prescribes his 
legal remedy, and has brought him back to the State of 



46 

Georgia, whence he escaped; that State may, by her statutes, 
require him to substantiate his right to his service, by a trial 
in her tribunals, before he can exercise the powers of a 
master, as in the case of a fugitive from justice, there is a 
trial, after removal, before sentence and punishment. If this 
be its meaning, (and no other trial than this, under Georgia's 
laws, could make the proceeding preliminary) one has only 
to perceive its connection- with other parts of the process, in 
order to see its absurdity. The only thing to be done with 
fugitives from* service, is to deliver them up to those to whom 
they owe service or labor; and as this delivery is to take 
place in the State where the fugitive is found, and as the fact 
of service must fiist be proved, as the fact of guilt in the 
other case must not, to bring them within the constitutional 
description, and justify the delivery, of course, the whole 
trial must be there also; must be before, not after the judg- 
ment and execution. 

Furthermore, the tribunals under the Act of 1S50, do not 
know that the laws of Georgia provide for any such trial; 
they only presume that they may. But they have an unhes- 
itating trust, a sure, unshrinking confidence in the correct- 
ness of this presumption. If they would attentively read 
the opinion of the Court in the Prigg case, which they very 
much quote, they would see that, whether Georgia has such 
statutory [provisions or not, is a question not worth their 
ascertaining; for in that case it was decided, that all such 
State r legislation was unconstitutional, and of course void ; 
for the power of legislation upon this subject was, exclus- 
ively, in Congress. The members of the Court were not 
unanimous in this opinion ; but they all agreed that any 
State legislation was invalid which retarded the constitutional 
right of the master. 

It is not here denied, that the Court had in their minds the 
legislation of the State where the fugitive is found. But it 



47 

is plain that the principle of their decision is unlimited, and 
so, with marked emphasis, is a portion of their language. 
"Would not," said Mr. Justice Wayne, "a postponement of 
the trial of a fugitive owing service or labor, for one month, 
be a loss to the owner of his service, equivalent to a dis- 
charge for that time'?'' Most certainly, if ever it would be 
equivalent to a discharge, it would be so, when required after 
a trial and a decision from a competent tribunal, upon the 
question of service or labor. It would make little difference 
to the owner, in which State the postponement took place. 
A State cannot impair a right conferred by the Constitution 
of the United States, upon her own citizens, more than any 
other State can do the same. Now, it would most clearly 
be an impairing of the right of a citizen of Georgia to his 
property, if after following its escape and recovering it, in 
precisely the manner which Congress had prescribed, that 
State should say to him, You shall not enter into the enjoy- 
ment of this property, until you have risked your right in 
another process of law. The State cannot interfere with 
the remedy prescribed by Congress. Judge McLean alone 
was of opinion that the statute of Pennsylvania was not 
unconstitutional, because it did not conflict with the Act of 
"•793, not forbidding what that allowed, nor interfering with 
the master, if he followed the directions of that Act; but 
this hypothetical statute of Georgia adds to a full compli- 
ance with all the requirements of an Act of Congress, its 
own work of supererogation ; and would of course be void, 
from the character of its provisions, as well as from the fact 
that the subject was entirely beyond State jurisdiction. 

Therefore, there is not only no such trial known to be pro- 
vided by the laws of Georgia, for the completion of the 
investigation of the question which is tried before a Judge 
or Commissioner, under the Act of 1S50, but also, there can 
be none such. 



48' 

If there could, it would be early enough, even in that case, 
to call the proceedings of the United States tribunals, pre- 
liminary, when we could find them legally connected with 
those other proceedings: implicitly, at least, in the Act of 
Congress providing for such proceedings, and expressly in 
the papers of the case, as when a demand is made for the 
surrender of a fugitive from justice. 

But still, it may be insisted, there may be another trial 
in Georgia. If, contrary to the general principles of law, 
which attach to the decision of a competent tribunal, a con- 
clusive force, as to the same right, between the same parties, 
there could be any trial whatever in Georgia, it is, in this 
connection, sufficient to say, that it is another trial. Yes, 
another and a difierent trial; and the fact that it is so, and 
not a continuation and completion of the investigation here 
begun, settles the point that this is not preliminary to that. 
The only trial that there could be, is of a suit for his freedom 
brought by the alleged slave against his actual master. The 
proceedings before [the United States tribunals are one step 
in thefprogress of that suit ! The slave is sent back in order 
that his suit against the master may be properly brought ! 
How (as has before, been asked, * but not answered,) can 
a proceeding in which James Potter claims Thomas Sims, 
alleged fugitive, be^ preliminary or ministerial to a suit in 
which Thomas Sims claims his freedom from James Potter, 
his master in possession ! Is there any legal connection 
between the two 1 

Yes, [ there is some connection between them. The one 
sends him into slavery ; and the other is an attempt on his 
part to get out again. The one is preliminary to the other, 
precisely, as an illegal imprisonment is preliminary to a writ 
of habeas corpus to obtain release, or a suit for damages; but 

♦Hon. Horace Mann's Speech at Lancsster, Mass., May 19, 1851. See 
his ''Letters and Speeches," p. 494. 



49 



no one, I think, has ever yet suggested, that these subsequent 
suits, at all, affected the legal character of the precedent act. 
No one has ever intimated, even after they were instituted, 
that they related back, and made the original imprisonment 
a mere preliminary proceeding; much less, that before they 
are brought, their mere possibility can work such ellect; that 
they had such a Pre-Adamic power as this. Imagine a mag- 
istrate saying, to a prisoner before him, on criminal process, 
"I know that the jurisdiction over the offence with which 
you stand charged, is not in me : I am not a competent 
tribunal to determine thequestionof your guilt or innocence; 
but the proof of guilt seems sufficient for the purpose of this 
preliminary investigation; and I shall commit you to prison, 
not until the next term of the Supreme Court, or any other 
Court; but for no special purpose, for the space of five years. 
But I would have you, by no means, on this account, to con- 
sider this a final trial and decision ; for, there lies the great 
right of the writ of habeas corpus, and if you sue out that 
writ for your deliverance, as you probably will, my act will 
be merely preliminary to that." Imagine this, and you have 
in your mind, the exact counterpart of a Commissioner under 
the Act of 1850, whether he practice under the shadow of a 
limited right of removal, or in the light of a constitutional 
delivery; and that too, in the best supposable aspect of his 
legal character. 

" But the question here is, whether the government of the 
United States, in making the surrender it has stipulated to 
make, is constitutionally bound to stipulate for a trial; and 
whether, because it has not made such a stipulation, its 
omission to do so, makes these proceedings final and conclus- 
ive, instead of ministerial."* Stipulations! Stipulations! 
What has the legal mind to do with stipulations'? Who 
says stipulations 1 We are bound to know the legal purpose 



* Commissioner Curtis. See Trial of Thomas Sims, 43. 



50 

of legal acts. Whether an officer may not, possibly, assas- 
sinate a fugitive from justice, or a master, his slave, after 
each has been delivered to each, we need not ordinarily 
inquire. But the avowed character, in which these are 
claimed and delivered, and the purpose which is set forth in 
the papers, or which arises by inevitable inference from that 
character, we are not at liberty to wink out of sight.* We 
do not venture to do this in the surrender of a fugitive from 
justice ; and we ought not to do it, in the delivery of a fugi- 
tive from service. 

The Slate comes after the former, with the commencement 
of a trial in her hands, with the avowed purpose of a trial 
on her lips; and we are not, at present, base enough to doubt 
her sincerity. Until the American States become as faith- 
less to each other as some already are to their own inhabi- 
tants, we will confide in their honor. By the same token, 
we are bound to understand, that the slaveholder will carry 

* A copy of the documents in a case of a demand of a fugitive from jus- 
tice, is before me. The first is a complaint before a magistrate, with prayer 
that warrant may issue against the persons therein named, and they " be 
dealt with according to law." The second is a warrant directing them to be 
brought before a magistrate, " that they may be dealt with as the law 
directs." Are the directions of the law in such cases, that they shall, on 
the strength of that complaint alone, be punished ? Are they at all doubt- 
ful ? Are not those words as so used, an explicit reference to a trial r The 
third document is a return of an officer, that the specified individuals are not 
to be found in the County ; and the fourth is the demand of the executive 
authority of the State where these proceedings are had, upon the executive 
authority of another State, within whose territory the fugitives are supposed 
to be, wherein the former informs the latter that he has appointed an agent 
to receive and convey the fugitives to a certain County " to be tried for the 
offence with which they stand charged ;" and requests that they may be 
delivered to such agent " for the above purpose." I even find in an old 
book of forms that the warrants long ago in use, in Massachusetts, for the 
apprehension of the fugitive and for his confinement for safe keeping plainly 
set forth as the end of all these proceedings, that he be sent back " to said 
State for trial." Documents accompanying Message of Gov. Kent to the 
Legislature of Maine, Jan. 2, 1839. 



51 

out his avowed purpose. We are not at liberty to infer, or 
guess that he will take any other course, lie comes for the 
fugitive, with no declaration or pretense that lie claims him 
for the purpose of a further trial : not a single paper he brings 
with him, refers to any further judicial proceeding, or con- 
tains in connection therewith, the name of another tribunal; 
and we are bound to know that there is no other trial in- 
tended. 

The State takes its fugitive as charged with crime. It 
would be a base suspicion to infer, that a State would punish 
a man who is only charged with crime; and good faith 
rightfully requires us to trust, that she will give him a fair 
and impartial trial, before he is condemned aud punished as 
guilty. The pursuing master claims his fugitive as actually 
held to labor, as his slave; and good faith, as well as com- 
mon sense, requires us to believe that he will treat him as 
such. The Richmond auction block and the Savannah jail 
witness that the slaveholders rigorously keep their faith, and 
make this claim good. Long's sale and Sims' stripes bear 
unimpeachable evidence that they carry out their avowed 
purpose.* 

If the State demanded her fugitives as actually guilty of 
crime, as actual convicts, then good faith would not require 
us to presume that they would have any further trial. On 
the other hand, we should, then, be required to shape our 
proceedings as though they were to be surrendered to instant 
punishment, as we ought, now, to try the rights of persons 



* Henry Long was sold to pay the costs recovered against him, in the 
final suit in Virginia ; and Thomas Sims has been carried before a judge and 
jury in Chatham County, Georgia, and refused to plead in answer to the 
action of his master, and lias since been whipped "for contempt of Court!' 
No one dares say this ; and yet the circumstances must be explained upon 
some such hypothesis, if the proceedings under the Act of 18<50 are merely 
preliminary. 

This was one of the chances of the law, a Commissioner may say. I 



52 

claimed as slaves, on the basis of their delivery to immediate 
slavery. With the papers in the case before him, with the 
Act of 1850 open in his hand, it is a most unnatural pre- 
sumption, a most illegal inference for an officer of law or a 
court of justice, to go out of these papers, to look beyond 
the Act which gives him power; and begin to guess, to 
weigh probabilities, and calculate the chances that there 
may, possibly, be another trial of the rights of these two 
parties ; and then say, that Congress was not bound to make 
stipulations for such a trial ; and I may consider this pro- 
ceeding preliminary. It would seem to be enough for such 
a tribunal, to know that its whole authority comes from an 
Act of Congress ; and that, under God, and the Constitu- 
tion, the laws of Congress are the snpreme law of the land 
and when Congress has made an investigation, and an act 
of law preliminary to no other proceeding, ancillary to no 
other trial, ministerial to no other court, it is not within the 
scope of its authority, to deny that it is final. 

The Act of Congress does more even, than this ; of course, 
it would not prescribe something to be done, and leave its 
character doubtful. We only need carefully read its provis- 
ions to find that the proceeding is final. Judge Sprague and 
Commissioner Curtis both agree, that it is the purpose of a 
legal proceeding, the result of an investigation, which gives 

meant to make the proceedings preliminary ; but things took a different 
turn after they left my hands. Never before did the character of legal pro- 
ceedings hang upon chance. 

There has been a most obstinate effort to conceal the termination of these 
fugitive slave cases, and to make these unfortunate Africans, as the old 
geographers tell us of their native Niger, lose themselves in the sands, 
before they fall into the shoreless ocean of slavery. But the direction of 
the current cannot be hid. We hear shrieks and catch glimpses of the vic- 
tims, hopelessly buffeting the billows ; and know whither they have gone 
from among us forever. 



53 

to it its peculiar character.* Let us r.pply this rule to the 
question before us. What is the decision of the tribunal, 
when satisfied with the proof brought to substantiate the 
claim? What is its legal import; not, what may, possibly, 
be the course or. relations of the two parties; but what is the 
result? Does he commit the fugitive for trial? Does he 
even send him to Georgia or any other State, for the purpose 
of trial? If so, this proceeding is preliminary. But. if he 
delivers him over to his master as his servant, as the Con- 
stitution requires, or even sends him to Georgia to be so 
delivered ; then The proceeding is final. 

Not even the limited right of removal (were it a substance 
which it is not, instead of a shadow which it is) could alter 
the character of this proceeding. The purpose controls the 
character of the process ; and when we are told that the 
purpose of the examination is to ascertain the right of re- 
moval, we must go further with our inquiry, and ask for 
what purpose is the removal to be made? Here, it is sub- 
mitted that the tribunals, who have recognised this "limited 
light of removal," could very much relieve the whole matter 
of the difficulties which now hang round it s if they would, 
with the same emphasis, with which they have defined the 
proceedings of a tribunal in the case of a fugitive from 
service, define the result, of those proceedings. The very 
darkness which now hangs over the issue of this removal, 
leads to a strong doubt, whether it could possibly have a 
legal existence. Its head only has been reported by a few 
naturalists of a select school. They have not attempted to 
delineate the rest of the animal ; and perhaps, for fear that 
their description would show an incorrect classification, or 

* Perhaps, the true statement of this principle of law, is, that the fact in 
issue and proved in the investigation, determines the rights of the parties, 
and the action of the tribunal. But, for the present, let the statement from 
the above officers, stand without criticism. 



54 

exhibit a lusus natural that would make their pretended sci- 
ence ridiculous. They have discovered a new right, not 
laid down in the books, a simple transportation from one 
State to another, a power of picking a man up in one 
place, and setting him down in another, without the least 
variation in his legal condition. But the object of this 
removal from one State to another, the legal end of all 
this ''hurrying to and fro' and mounting in hot haste," the 
purpose of the transportation, they say nothing about. We 
would not perplex them with supposed cases of fraud, or 
ask about "stipulations;" but we want to know, in the 
order of things what comes next. According to the bill, 
according to the bill, what is the last performance of the 
evening? The fugitive is not carried away, as a pauper to 
relieve us from the charge of his support, nor as a convict to 
be banished, nor as a person dangerous to the State to be 
prevented from doing mischief, nor yet, say they, as a slave 
to the horrors of slavery. What, then, is his legal character, 
and the purpose of his travel? 

Can the Federal officers say, that, by due course of law, 
that, naturally and necessarily, unless both parties consent 
that it shall be otherwise ; this removal will lead to and ter- 
minate in a further trial of the question now at issue be- 
tween these two parties? If so, and only so, let it be deem- 
ed a preliminary proceeding. 

But this they cannot say, without contradicting the pro- 
visions of the Constitution upon this subject; nor even 
under the Act of 1S50, which, with all the inaccuracy which 
may be found in its sections, does not attempt, like this con- 
struction and to this extent, to destroy or limit or postpone 
the enjoyment by the master, of his constitutional rights. 
It sets aside this pretext of a further trial. The 9th Section? 
which is the only one that leads us into the State to which 
the removal is to be made, declares the purpose, and fixes 



DO 

the character of that removal. It says, that the officer shall 
there " deliver him to said claimant, his agent or attorney." 
without restriction or limited purpose — as his own. The 
whole proceeding ends in giving to one party all that he 
demands. The property which was out of his possession, 
and of which his ownership was denied, is, completely and 
without qualification, restored to him. This is, even now, 
the only legally possible end of the proceedings in the case 
of a fugitive from labor ; and terminating thus, it is idle to 
call them preliminary and ministerial. 

Substantially the same purpose of the statute appears also, , 
as has been pointed out by Mr. Loring,* in the 10th Section, 
which, after prescribing the manner in which the evidence 
that a person is held to service or labor in a certain State 
and has escaped therefrom, shall there be taken, in order to 
establish those facts in the State to which he has fled, pro- 
vides, that, upon proof of the identity of the captive with 
the person described in the record as so held and as having 
escaped, " he or she shall he delivered vp to the claimant." 
This section alone seems to provide what the Constitution 
requires — a delivery to the master in the State where the 
fugitive is found and seized. This enables us to interpret 
the nature and force of what is done, or what the statute 
ought to require to be done, by the tribunal administering its 
provisions, in the case of a successful claim. In the light of 
this section, we must say, that the tribunal is required, when 
satisfied of the identity of the party as named in the record, 
to deliver him to the claimant as his servant or slave ; and 
then, the statute provides, that this certificate shall secure to 
the master, in addition to the rights which the fact certified 
would give him, under the laws of his own State, the further 
authority to convey the fugitive thither. 

Admit now, that the master's right of removal, as before 

* See trial of Thomas Sims, 28-33. 



56 

supposed, might constitutionally be confined to a single 
State, and that he could only convey him back to the State 
whence he fled; yet who does not see, that this is not the 
essential part of this process, but that, on the other hand, 
the trial is consummated by the absolute delivery which 
precedes this; that this "authority for transportation" is a 
mere incident, "nothing more;" that, instead of being a 
limitation of the master's right, it is a special authority 
added thereto, or rather, expressed in addition thereto, in 
order, as Judge Wayne defines it. to give practical value to 
the previous delivery, and to secure to the master the actual 
enjoyment of all the right which that delivery fairly and 
legally implies? Who would think, that this subordinate 
privilege would come to override the precedent and principal 
right; that this incident could attain to such importance as 
to change and fix anew the purpose and meaning of the 
statute, and become the chief staple of judicial reasoning 
and corner stone of construction 1 . 

From this point, let. us look at the provisions of this 
statute. Sections 4 and 6, which profess to be the govern- 
ing sections of the Act, and which the courts rely upon as 
defining the right which it intends to secure to the master, 
and, therefore, as fixing the character of the proceedings 
and justifying their summary method, give under the certi- 
gcate, only " a limited right of removal." Yet Section 9, 
operating upon the same cases, sets aside this right, and in 
place of an empty right of removal at his own charge, gives 
an actual removal at the public expense, and then, as its 
termination, an absolute delivery to the possession of the 
master. It does all this, — and this is the most marvellous and 
illegal characteristic of this anomalous statute — it makes 
this substitution of rights, this essential and entire change in 
the nature and effect of the judgement, after the court ox 



57 

tribunal has pronounced its decision, and issued the certificate 
after the proceedings arc finished, and one party lias ceased 
even to be, in the court ; perhaps, though that is of little con- 
sequence, after the court itself has adjourned, and at the mere 
option and upon affidavit of one of the parties. It would 
seem as though, at this stage of the proceedings, this limited 
and special right had done its work. Tt has served to turn 
aside the arguments of the captive's counsel, to make the 
proceeding seem to be a mere preliminary step ; and now 
that those arguments have been evaded, and the decision 
rendered in favor of the claimant, its limitations, if it has 
any, may be expected to commence their operation. But 
precisely now, the affidavit of the claimant is put in, and the 
limited right is put out: the certificate ceases simply to 
authorise a removal, and henceforth, authorises not only a 
removal to the territory of another State, but also, within 
that territory, a delivery to the possession and control of a 
slaveholdmg master. Others may deem these conflicting 
sections of the statute as designed to baffle objections that 
might be raised against its constitutionality; but it is I 
think, a supposition more in accordance with the facts, 
to attribute these contradictions to a spirit of gross care- 
lessness, pervading the Congress which enacted it. In one 
section, it requires the fugitive servant to be delivered to 
his master, in the Slate into which he has fled; while 
the section next preceding provides for such a delivery, in 
the State from which he escaped ; and at the same time 
according to Commissioner Curtis and Judge Sprague the 
act cannot be made to work at all, unless, setting both 
these sections aside, the 4th and 6th are made the gov- 
eming sections, which, as construed by them, provide no 
absolute delivery, but only a limited right of removal. Is 
there any way to reconcile these conflicting and contradict- 
ing provisions? The only way to do so, consistently with 
5 



58 

the constitutional clause upon this subject, or with the legal 
relations or actual facts of any case under that clause or 
under this statute, is to say, that it secures to the master an 
absolute delivery into his hands, o(his escaped servant, and, 
then, for his convenience, gives him authority to carry him 
unmolested back to the State whence he escaped. But then, 
the proceeding ceases to be preliminary ; and in fact, whether 
we reconcile these contradictions or not, that is not its char- 
acter ; for, under no construction, does it look towards a fur- 
ther trial. 

Before leaving this division of the argument, it is proper 
to say, that the Supreme Court have decided this very point. 
They have declared, in the leading decision upon this subject, 
that this is a " case arising under the Constitution." The 
flexibility of the law is sometimes a matter of boast among 
the admirers of the science of jurisprudence. This quality 
is carried to its highest degree, by the tribunals who sustain 
the constitutionality of the Act of 1S50, when its unconsti- 
tutionality is ably pressed upon their attention. The Law 
seems actually to become liquid in their hands: the estab- 
lished distinctions cease to be fixed; and the whole code, 
common and statute, flows together, in one direction, from 
freedom into slavery. It is so in this instance. The high- 
est tribunal in the land calls the process of reclaiming a 
fugitive from service " a case) " but the inferior tribunals 
insist that it is not a case, only a part and a very small part 
of a case: a mere preliminary step towards a case to be 
found somewhere; but no one knows whether on this side 
or beyond Cape Horn. Let us not follow this liberal con- 
struction. Let us understand the Courts as they say. Let 
us take the Reports as they are. Then, we shall see that 
this is a case, a whole case, an entire case, with all the 
essential elements of a case. 



59 

It is a Final Proceeding, and terminates in a final judg- 
ment. 

Blackstone says : — 

" Final judgments are such as at once put an end to the action, by declar- 
ing that the plaintiff has entitled himself or has not, to recover the reniody 
he sues for." 

In this case, the claimant sues for the delivery into 
his possession; of a person whose service, he alleges, is due to 
him ; and the court must decide that he has, or has not, enti- 
tled himself to receive this delivery, and thus, put an end to 
the action, by making the delivery sued for, or by discharg- 
ing the captive as a person not owing him service or labor. 

According to the statement before quoted from Blackstone, 
it is the effect of the judgment, in the suit in which it is given, 
that determines whether it is final or not; and we are not to 
follow Judge Sprague's definition,* and inquire what will 
be its effect upon some future suit involving the same issue 
between the same parties, in order to ascertain its character. 
It is undoubtedly true, that final judgments are, by the gen- 
eral principles of law, conclusive ; but it does not necessarily 
follow, that conclusiveness is the essential element, the dis- 
tinctive mark of a final judgment. It is rather an attaching 
incident. In the discussion upon the force of foreign judg- 
ment by Mr. Justice Story, f would it be correct to follow 
his distinctions, and when he states, that a judgment under 
such circumstances is conclusive, to mark that as final; and 
when he states, on the other hand, that a judgment under 
such other circumstances is not conclusive, to term that pre- 
liminary ? That he is treating of foreign judgments instead 
of domestic, does not affect his statement; and besides, may 
not the several States, according to whose laws, the decisions 
in the cases of fugitives from service, are to be rendered, 

* See Charge to the Jury, in the Trial of James Scott, June 5, 1850. 
t Conflict of Laws, 491-516. 



60 

give to them conclusiveness, if they see fit, even if they were 
not so, by the general principles of law, under an express 
provision of the Constitution of the United States? Suppose 
now, that one State should choose to treat them as conclusive, 
and the neighboring Stale should regard them as not bind- 
ing the parties, would the cases of fugitives from these two 
States, give to the respective proceedings a different charac- 
ter, and make one final, while the other would be prelim- 
inary] Most clearly, there could be no such distinction, 
depending upon an accidental circumstance that might be 
known or unknown to the tribunal, between proceedings, in 
themselves, exactly alike. Yet, it would be so, if Judge 
Sprague were correct in his definition. There is other 
authority also, besides Blackstone and Story, to show that 
conclusiveness is an attaching incident of a final decision. 
Professor Greenleaf, in treating of Records and Judicial 
Writings, says, "it is for the interest of the community that 
a limit should be prescribed to legislation ; and that the same 
cause of action ought not to be brought twice to a final deter- 
mination."* If it was the very essence of a final determin- 
ation, that it should never be re-examined, how could a jurist 
speak of a cause coming twice to a final determination, and 
say that " the interest of the community," and the obvious 
principles of justice require it to be otherwise. 

It is, according to these authorities, enough for the tribunal, 
to know, that its decision has a final effect in the case which 
it decides. Yet, it may add to the force of this argument, to 
offer some considerations which tend to show, that the deci- 
sion of these cases cannot again be re-opened and examined. 
Supposing that the constitutional requirements and the 
principles of law should be complied with, in all of the pro- 
ceedings in these cases, in the constitution of the tribunal and 
the manner of taking the evidence, (as they are not now), 

*Greenleaf on Evidence, Vol. I., § 522. 



61 

supposing this (and without this supposition, the act of the 
tribunal has no validity) ; then it will be seen, at once, that 
the decision of one of these cases is conclusive. It is the 
judgment, not only of a competent tribunal, but of a tribunal 
having exclusive jurisdiction; for, the tribunals to whom 
Congress commits the delivery of fugitives from service, 
alone, must be empowered and required to ascertain who 
are fugitives from service; in other words, whether a person 
brought before them as a fugitive, really owes service or 
labor, under the laws of another State, to the claimant; and 
having determined that fact, according to the general prin- 
ciples of law, their decision must conclude the mutual rights 
of these two parties, in any subsequent suit. It is worthy 
of remark also, that it is, either a decision upon the status of 
of a person, as the words of the clause would seem to indi- 
cate, or a judgment in rem, as Judge Story regards it;* and 
that both of these have something like a special and superior 
conclusiveness. 

This is precisely the view taken by Mr. Crittenden, Attor- 
ney General of the United States, in his letter of legal advice 
to the President, when the latter had the Act of 1850 before 
him, for his signature. Unconsciously, I have nearly followed 
his words : they are as follows: — 

" The whole effect of the law may be thus stated. Congress has consti- 
tuted a tribunal with exclusive jurisdiction, to determine summarily, and 
without appeal, who are fugitives from service or labor, under the Second Sec- 
tion of the Fourth Article of the Constitution, and to whom such service or 
labor is clue. The judgment of every tribunal of exclusive jurisdiction, where 
no appeal lies, is of necessity conclusive upon every other tribunal, and, 
therefore, the judgment of the tribunal created by this Act, is conclusive 
upon all tribunals. Wherever the judgment is made to appear, it is conclus- 
ive of the right of the owner to retain in his custody, the fugitive from his 
service, and to remove him back to the place or State from whence he 
escaped." 

In regard to the limiting effect of the last sentence, if it 

* 16 Peters, G'24. 



62 



should be supposed to have any such effect, it is sufficient 
to repeat the question, "What is the purpose of this removal; 
and to refer to the 9th section for the answer, that it is, that 
he may there hold him as his own, and to say, that the con- 
clusiveness covers the removal with all its legal purposes. 
The definition of the master's right, in that sentence, is 
worthy of notice. The words are, " the right of the owner to 
retain in his custody" " and to remove ; " not the right of a 
person, other than the owner, to retain for the purpose of re- 
moving. The certificate, then, concludes the right of the 
owner; and here, this letter agrees with the expression of 
Chief Justice Taney, when he calls it " the certificate of 
ownership."* Of course, he could call it nothing else, nor 
did any other member of the Court speak of it differently. 

It is also worthy of observation, that it will be more cred- 
itable to the legal character of the Attorney General, if we 
consider the remark of the last sentence as applicable, not 
to the substantive right of removal, which the advocates of 
the Act of 1S50 undertake to build up, but to the constitu- 
tional right of removal, which Justice Wayne lays down, 
which is incident to a delivery, which, in its turn, is based 
upon proof of ownership; and that, therefore, any decision, 
which is conclusive for this incidental purpose, is a priori, 
conclusive of the fact which gives rise to it, to wit : the fact 
of absolute ownership. In no other way, can it be conclusive 
of the right to remove. The correct way of stating the law 
as to the conclusiveness of judgments, seems to be, to say 
that they are conclusive as <: to that which was directly in 
issue" in the trial, and to that alone.f Now, in the trial of 
an allegedTugitive, the question of held to service or labor 
in another State, is that which is directly in issue ; and if 



* 16 Peters, 631. 

f Greenleaf on Evidence, Vol. I., § 538. 



63 

the decision of the tribunal before whom the trial is had, is 
conclusive of anything, it must conclude that; for, that is the 
main question directly in issue. The claimant docs not 
allege that the captive owes him a return to the State whence 
he fled, but that he owes him service or labor after he has 
returned ; and it is only because he owes him this service, 
that he gets any right to remove him thither; it is only 
because the tribunal judicially determines this fact in issue, 
that its decision is conclusive evidence of the master's right 
to that service, and, therefore, of a right to remove him where 
he may enjoy that service or labor. 

Here, is to be seen another contradiction of high official 
authority, by tribunals desirous of sustaining this statute. 
Commissioner Curtis did not allude to this opinion of the 
Attorney General; and Judge Sprague, while he attempted 
to sum up the authorities in favor of the statute, shunned 
this official letter, though he quoted from an unofficial letter 
of Judge Grier, upon the same subject. Neither of these 
officers could cite this letter of Mr. Crittenden, without sum- 
moning an authority to contradict their own construction. 
He had written to the President, that the bill before him 
authorized the tribunals to determine Ci wko are fugitives 
from service or labor" and <c to whomsucli service or labor is 
due;" that this determination was the judgment, not the 
preliminary decision, but the judgment of a tribunal having 
exclusive jurisdiction, and, of necessity, conclusive upon 
every other, and upon all tribunals ; and therefore, he said, 
it may rightfully prevail against the habeas corpus. This 
opinion, undoubtedly, is not binding as the decision of a 
Court. Judge Sprague and Commissioner Curtis, without 
dispute, may set it aside, if it is incorrect. But is it incor- 
rect'? Did the Attorney General mislead the President : and 
inform him that a decision was final and conclusive, which 
was not so 1 Was the signature of the President obtained 



64 

for this Act, only by a gross mistake, upon the part of the 
Jaw officer of the Cabinet, when called, formally and sol- 
emnly, to advise the executive] 

It is, at least, singular, that the approbation which changed 
that bill into a statute, should be given to it, only upon the 
assertion of an opinion to a certain effect : and that, after- 
wards, Thomas Sims, defended by the arguments of Mr. 
Rantonl and Mr. Lpring, could only be carried out of Boston, 
and the alleged rescuers of Shadrach could only be put in 
peril of conviction and punishment, by the denial of that, 
and the assertion of another opinion, directly opposite. Judge 
Sprague even declared, that this certificate could not protect 
the claimant, in an action of assault and battery and false 
imprisonment, committed in the original arrest: while the 
Attorney General says, it is conclusive, everywhere' of the 
fact of owing service, on the one side, and of the right to 
exact it, on the other. 

The character of the proceeding is an important element 
in this discussion. The supporters of the statute of Septem- 
ber IS, 1S50, rely upon what they deem to be the preliminary 
character of the process, to sanction its summary method. 
If the proceeding is preliminary, they feel able to justify that 
method, affording, as it does, to the captive neither the scru- 
tiny of a judge, nor the vigilance of a jury. If, on the other 
hand, the proceeding is final, then, it is admitted, that these 
old formalities of the law cannot, constitutionally, be dis- 
pensed with.* As this preliminary character has been made 
to depend wholly upon a limited right of removal which the 
proceeding is alleged to result in conferring, it may be well, 
here, for the sake of clearness, to recapitulate the arguments 
upon that point, before we pass on to see what other consid- 

* See Trial of Thomas Sims, 44, and Judge Sprague's Charge. 



65 

eralions may be found, to confirm and corroborate their log- 
ical result. 

First, however, the writer does not mean to deny the 
assertion of other opponents of this statute, that this limited 
right of removal, in reality, and to all practical legal intents 
and purposes, has no limits; that its pretended restrictions 
have no coherence with the fact certified, or with the course 
of the proceedings; that there is no power in the certified 
fugitive to procure their enforcement, if there be any author- 
ity in any Courts to enforce them, and that, in their best 
state, these restrictions would be only a vain attempt to 
cramp and narrow a constitutional right of the person to 
whom service or labor is due, and to this point, he cites the 
decision of Judge Woodbury, in the case of Sims before 
him, upon Habeas Corpus, as a prisoner under the certificate. 
Therefore, this much boasted, many-voiced, special and lim- 
ited right has no power to affect the character of the pro- 
ceedings under this Act. 

Secondly, adopting, for the present, to its "fullest extent," 
the position laid down upon the other side, that it is the pur- 
pose of a proceeding, which fixes its legal character, he 
maintains, that every legal act has a known legal purpose, 
set forth in the papers before the Court, and recognized in the 
law which gives the tribunal jurisdiction over the parties; 
that this removal must also have its law-recognized purpose; 
that its purpose is not known to be a further trial of the issue 
between the two parties; and that, the claim having once 
assumed the shape of a contest awaiting judicial decision, 
without the knowledge of such further purpose, thus brought 
home to the notice of the tribunal, no person, who sits upon 
the bench, should dare to call it — preliminary. 

The uniform course of preliminary proceedings, and par- 
ticularly, the course of the officers cited by Mr. Curtis as 



66 

discharging duiies that are merely preliminary, sustains this 
point.* 

Following this reasoning to its positive side, it is here con- 
tended, that, even under a certificate, this removal has a 
purpose known to the law, to wit: the entrance by one party 
into the enjoyment of all the right for which he sues, and 
the rendering of the other into the ultimate, the ultimate 
condition, from which he prays to be rescued; and to the 
support of this position, besides the papers in every case, 
the character of the parties therein set forth, and the purpose 
necessarily implied, the fact certified, with its inevitable pur- 
port and consequence, there are the words of the 9th section 
of the statute, which make the proceeding ultimately ter- 
minate in an absolute delivery of one party into the posses- 
sion of the other, without restraint or limit. The transfer 
of this absolute delivery, from the State where the fugitive 
is found, to the State whence he fled, if the point first stated 
in this essay be correct, is undoubtedly unconstitutional ; but 
it does not change the character of the proceedings. An 
absolute delivery of the person contended for, made any- 
where, makes the proceedings which it terminates — final. 

To sustain this point, and show that the right of removal 
is an incident, not limiting, but additional to, a full delivery, 
he cites also the 10th section, where this right of removal is 
made to follow such a delivery, merely as its additional 
incident. 

Thirdly, though first in the order of this essay. Turning 
back from the point in this discussion, where is first intro- 
duced as an element in the argument, this limited right of 
removal, turning back thence to the Constitution, he has 
endeavored to present the right secured to the person " to 
whom service or labor may be due," as written in the Con- 

« Ante, 42. 



67 

stitntion itself, as defined by the Supreme Court, as recog- 
nized by State tribunals, and confirmed by collateral consid- 
erations. The Constitution prescribes a delivery ; and if any 
statute provides a different right; then, that very difference 
makes the statute unconstitutional. 

Moreover, the constitutional right is to an absolute delivery, 
based upon the right of property, requiring as a condition 
precedent, the proof of ownership. 

II. The Method of the Proceeding. Before each and all 
of these three propositions, if they or either of them be cor- 
rect, falls, by the admission of its supporters, the Act of Sep- 
tember 18, 1850, with its summary proceedings, and with it, 
the Act of 1793 : fall also the chief arguments, if they can 
properly be termed arguments, which the writer lias seen 
adduced to these statutes' support. Upon these, each and all, 
by connecting stones that need not here be recounted, sup- 
ported with pillar and buttress reared mainly by others, and 
confessed, by their adversaries, to be firm, rises for the alleged 
fugitive, in all the dignity and majesty of its full proportions, 
the grand structure of a due process of law; due process of 
law, brought to perfection, by the labor of Anglo-Saxon 
architects, through a hundred generations, and framed into 
the Constitution, by our forefathers, that it might protect 
every inhabitant of the land, with its just presence. 

There must be for the alleged fugitive, the presence of a 
Judge, holding office during good behavior, and receiving, 
at stated times, a fixed compensation, and the panel of 
twelve men: the judicial office and the trial by jury; not 
as boons of Congressional favor, to be granted or withheld 
by recreant statesmen, in order to sooth or conquer northern 
or any other prejudices, but as an organic necessity, a con- 
stitutional right, which neither Congress, nor any branch of 
the government can dispense with. The early arguments in 



68 



support of this position, still stand in full force and virtue, 
unaffected by the attempted answer that the proceeding is 
preliminary. Other reasons will confirm this conclusion, 

Let us consider the acknowledged purport of the clause 
of the Constitution, which is .now under consideration, and 
see if that will not help us to determine the necessary char- 
acter and method of the legal proceedings, which the legisla- 
tion of Congress, in execution of its provisions, must pre- 
scribe. In exact, definite language, we have the following 
statement from Commissioner Curtis : — 

* It intended to declare, and it does declare, that, whatever may be the 
law of Massachusetts on the subject of personal liberty, that law shall not 
be applicable to a person who owes service or labor in the State of Georgia, 
simply because he has escaped within the limits of this Commonwealth ; 
but, that the master or owner to whom such service or labor is due, shall 
retain unimpaired the right to that service or labor, which the law of his 
own State has given him."* 

For the purpose of the present argument, this statement 
may be considered entirely accurate. 

There seem to be two modes, in which a State might dis- 
charge a person held to service or labor in another State, 
who had escaped into its territory, both of which are forbid- 
den by the Constitution ; only one of which, however, was 
probably in the minds of its framers. They might, by 
direct legislation, declare that fugitives from service in an- 
other State, eo nomine, should, within their limits, be deemed 
and treated as discharged from such service. This is forbid- 
den by the Constitution ; but probably, more prominent to 
their apprehension was the fact, that the legislation upon 
the matter of service or labor, would be different in different 
States, and that a person held to service in one State, and 
escaping into another, would be discharged from such ser- 

* Trial of Thomas Sims, 45. 



69 

vice, if the case between him and the claimant were to be de- 
termined, according to the statutes of the latter State. This 
was probably the result which they especially intended to 
guard against ; and in this light, the clause may be consid- 
ered as, not so much a restriction upon the power of the 
several States to legislate upon the subject of service or 
labor, as a restraining of that legislation from operating in a 
certain class of cases. This seems to be the exact view 
taken by Mr. Curtis in the language above quoted. " what- 
ever may be the law of Massachusetts upon the subject of 
personal liberty, that law shall not be applicable to a person 
who owes service or labor in Georgia.' ; Were there no such 
provision, the fugitive might, in the courts of Massachu- 
setts, plead the statute of Massachusetts, and be discharged: 
under this provision there may still be in force, the same 
statute ; but it can bring the fugitive no release ; it is not 
applicable to his case; he must be delivered up. The clause 
seems to be merely a reaffirmation, in relation to this partic- 
ular subject, of the principles of the common law, that the 
lex loci contractus shall govern such cases, with this import- 
ant addition, which is sufficient, were there no other reason, 
to account for its adoption, that it specifies, that the remedy 
shall be, not in damages, which, as has been said, might be 
against " persons utterly insolvent or worthless; "* but in a 
delivery of the person into the possession and control of the 
master. 

Carefully examine this language of Commissioner Curtis, 
and see also, if that which I have made immediately to fol- 
low it, is anything more than a fair amplification of its 
meaning; and then, determine, whether, in his words or 
mine, there is conveyed any other impression than that there 
is at issue between the claimant and fugitive, a question of 

* Judge Story, 1G Peters, 61. 



70 



legal right; that this issue is to be tried by due process of 
law, according to the ordinary rules of evidence, and deter- 
mined according to the verdict of a jury, by the deliberate 
decision of a Judge ! Rise up from their reading, and see, 
if you have in your mind, the most distant idea of anything 
but a judicial investigation; see if any other idea lurks in 
the words, if you can snuff in their meaning, the faintest 
scent of a mere preliminary, ministerial proceeding, in 
which no right is determined, and no right can be deter- 
mined ! 

Again, Judge Story, in giving, in the case so often quoted 
before, the reasons why this matter should not be left to the 
legislation of the States, uses the following language which 
bears with it the same inference : — 

" If, then, the States have a right in the absence of legislation by Con- 
gross, to act upon the subject, each State is at liberty to prescribe just such 
regulations as suit its own policy, local convenience and local feelings. The 
legislation of one State may, not only, be different from, but utterly repug- 
nant to and incompatible with that of another. The time and mode and 
limitation of the remedy ; the proofs of the title, and all other incidents 
applicable thereto, may be prescribed in one State, which are rejected or 
disclaimed in another. One State may require the owner to sue in one 
mode, another in a different mode. One State may make a statute of limi- 
tations as to the remedy in its own tribunals, short and summary : another 
may prolong the period, and yet restrict the proofs : nay some States may 
utterly refuse to act upon the subject at all ; and others may refuse to open 
(their) Courts to any remedies in rem, because they would interfere wiih 
their own domestic policy, institutions or habits."* 

Now, although Congress might have no power to compel 
the States to legislate upon a matter left to their legislation, 
yet, certainly, the Supreme' Court of the United States has 
power to set aside all state legislation not in accordance 
with that instrument; and' *we, accordingly, may presume, 
unless this language of the Court is used with unaccounta- 
ble looseness, that they deemed these various forms of state 

» 16 Peters, 623-4. 



71 

legislation as not directly at variance with the Constitution. 
Moreover, it is a very unjust imputation of bad faith against 
the States, to intimate, that, Where the Constitution had 
plainly intended that a proceeding should have one charac- 
ter, the States, legislating under the Constitution, would give 
to it a character altogether different and even opposite; that, 
they would change what the Constitution intended should 
be a mere preliminary proceeding, into a due process of law. 
This seems to partake strongly of the doctrine of Stipula- 
tions, that is, the doctrine that a State may not be trusted 
to perform a duty which the Constitution or the law devolves 
upon it in any particular case, without an express stipula- 
tion that she will discharge the given obligation. This 
doctrine lias been completely exploded by Commissioner 
Curtis, though 1 find more numerous traces of it in his own 
opinion than elsewhere, and am inclined to think that the 
doctrine itself originated with him.* 

A person would, I think, study this language of Judge 
Story, some time, before he would come to the conclusion, 
that the right under consideration was not properly the sub- 
ject of full legal investigation. The language applies only 
to a regular suit, an action between party and party, to be 
fully heard and finally determined in open court, and not to 
be decided without any opportunity given to one party to 
cross examine the witnesses, without a jury to find the fact, 
or a Court to lay down the law. Why should the Court 
speak of " the proofs of the title," if the title is not to be 
tried? " One State," says the learned authority, "may make 
a statute of limitations as to the remedy, in its own tribu- 
nals, short and summary." But, how can a " statute of 
limitations," be made to work a discharge, unless it be 
pleaded? How can it be pleaded, unlers the parties come to 

* Trial of Thomas Sims, 43. 



72 

an issue ? How can they come to an issue, unless there is 
to he a trial of their right? a final trial, and not a mere 
preliminary inquiry? 

These remarks of Judge Story will be found consonant 
with the rest of his opinion : and a similar idea, more or less 
strongly, pervades the reasoning of other members of the 
Court, in the same case. Judge Wayne declared that ' : the 
States surrendering the right to discharge, meant to exclude 
themselves from legislating a mode of tried;" that "they 
shall not make or apply regulations to try the question of the 
fugitive owing service;" that they should not direct the 
mode " how the right of property should be asctrta'uied and 
determined ;" that they had no right to legislate "as to the 
mode of finally determining whether a fugitive owes service 
or labor:" that there were objections to the doctrine that 
the States might legislate [, a remedy, by which the right of 
property in fugitive slaves is to be ascertained and finally 
concluded :' : and, again, repeating this assertion with an 
essential limitation, he said that '-having surrendered the 
right to discharge, they are not now to be allowed to assume 
a right to legislate, to try the obligation of a fugitive, to ser- 
vitude, in any other way than in conformity to the principles 
peculiar to the relation of master and slave; ' * and in an- 
other place, touching the very question mooted in connection 
with the Act of 1S50, he uses the following words : — 

" I deny all right in the States, to legislate upon this subject ; unless it be 
to aid by mere Ministerial acts the protection of an owner's right to a fugitive 



* The language of this limitation is worthy of notice. Taken by itself, 
like the extract from Commissioner Curtis, it seems to recognise that the 
slaveholder was not to have a peculiar method of recovering his lost prop- 
erty, or to seek his remedy in a Court different from those which ordinarily 
administer justice between the citizens of the State where the fugitive is 
found, but simply, that those Courts, i. e. the State Courts, should determine 
his rights according to the laws of the State ichere he held the fugitive as a slave. 



73 

slave, the prevention of all interference with it by the officers of a State or 
its citizens, or an authority to its magistrates to execute the law of Congress, 
and such legislation over fugitives as may be strictly of a police character." 

Judge Wayne, like Judge Story, was endeavoring to es- 
tablish the position, that the power of legislation was, exclu- 
sively, in Congress; and to that end, he denies that the 
States may legislate for the trial of the question of service 
or servitude. Would he have spoken of the right to try not 
being in the States, if the clause upon which he was reason- 
ing, contemplated no trial] Would he have denied to the 
States the possession of this right, if the right itself had no 
existence 1 Did he not deny it to the States, for the express 
purpose of uniting with the majority of the Court, in assign- 
ing it to the United States 1 If the United States have the 
right to legislate for a trial, it is only because the words of 
the constitutional clause relating to this subject, are such as 
to make a trial proper and necessary ; because the require- 
ment of that clause cannot be fulfilled, with a due regard to 
the rights of the parties, and a just respect to other provis- 
ions of the Constitution, without such trial ; and therefore, 
it is the duty of Congress, in legislating upon this subject, to 
secure it. In his opinion, the legislation of the States must 
be restricted to " mere ministerial acts." Would it not sur- 
prise this member of the Supreme Court, to learn that the 
Constitution confines the legislation of Congress within 
the same narrow limits ? Whether these extracts be mere 
obiter dicia, or whatever may be their rank in the order 
of judicial expressions, it is sufficient for the limited purpose 
of their introduction here. They are introduced to show, 
that the language of the constitutional clause relating to 
fugitives from service, does not, clearly and necessarily, fix 
upon the proceedings required for its enforcement a mere pre- 
liminary or ministerial character ; and it is hard to believe 
that the phraseology of that instrument has left so important 



74 

a question in doubt or obscurity. They, as well as the 
quotation from the opinion of Commissioner Curtis, show, on 
the other hand, that, whenever the tribunals approach this* 
subject, aside from that very question, then, all idea of a 
mere preliminary proceeding slips from their mind; and its 
olace is filled with the image of a due process of law. 

Turning next to the language of the clause, we find an 
important word standing in opposition to the word " deliv- 
ered. " The fugitive shall not " be discharged from such 
service or labor." What is a discharge in law 7 It is a 
decision, in any case under this clause, that the person 
claimed does not owe the service or labor that the other 
party demands. This decision may, according to the gen- 
eral principles of law, in any court, in the same State at 
least, be afterwards pleaded in bar to the same claim from 
the same party, Such a discharge, the tribunals to whose 
jurisdiction the subject of fugitives from service is com- 
mitted, are forbidden to give. The Constitution then pre- 
sumes, that it is within the scope of the ordinary powers of 
these tribunals, to give such a discharge: for it would hardly 
take the trouble to forbid them to do that, which, from their 
very nature and constitution, they have no power to do. 
Such a discharge, it hardly need be said, can be given only 
by a Judge, based, save by agreement of parties, upon a ver- 
dict of a jury as to the fact at issue. If the force of this 
word is here fairly interpreted, the intent of the Consti- 
tution is, that the alleged fugitive should have his rights 
determined in the presence and by the decision of a jury 
and a Judge. 

In this connection, appears one of the most unrighteous 
and unconstitutional features of this wicked statute. It 
changes the whole trial into a mere preliminary proceeding, 
and of course, the court into a mere ministerial officer. As 
such, the maxim. " expedit reipubliccc ut sit Jinis litiurii" 



75 

or the more forcible one, "nemo debet bis vc.vuri pro una ct 
eadem causa,''' does not, in the common course of law, apply- 
to its decisions. A decision of a scrnpnlous Commissioner, 
that the alleged fugitive is not a person owing labor or ser- 
vice to the claimant, will not prevent the'latter from procur- 
ing a warrant from another Commissioner, less scrupulous 
about the evidence, and completely willing to send human 
beings into bondage, who, upon a summary examination, 
will give the required certificate, and sentence a man, once 
declared free, to hopeless slavery. But, only on one side, 
does the decision of this tribunal leave the question thus 
open to re-examination. If the decision be in favor of the 
claimant and against the liberty of the captive, then, by the 
express provision of the statute, it is conclusive; and no 
process can procure an examination into its accuracy or cor- 
rectness. Can Congress legislate into a mere preliminary 
decision of a mere ministerial officer such a conclusive force 
and effect? Can they go further than this, and give to it 
this conclusive character, only in case the decision shall 
favor the claimant? Have they a right to conclude one and 
not both of the parties 1 Most surely, the Constitution did 
not intend, that the tribunal, which has power to bind and 
hold, should not have power to release and discharge; and 
they fixed the character of the court, when, by forbidding it 
to discharge those who were held to service or labor in an- 
other State, they implied in it the power to discharge those 
that were not so held. • 

The next fact worthy of our attention, is the well settled 
fact of the right of recaption, with some of its incidental 
consequences. Suppose now, an attempt on the part of the 
master, without any legal process, to capture one whom he 
claims as a fugitive slave, and that this attempt is met with 
resistance, interference, ends in failure or rescue, or is only 
accomplished with severe wounds or injury to either or both 



76 

parties ; or suppose that, after the capture, the captive is 
taken from the possession of the master, by the service of 
the writ de homi?ie replegiando. Now, from these contin- 
gencies, there may spring, it is seen at once, numerous suits, 
each to be tried within the State where the captive is found 
whether the action be brought in the State or the United 
States Court ; and in each of these suits, the question wheth- 
er the alleged fugitive was legally the slave of the captor, 
might be put in issue by the pleadings, and would go as a 
question of fact to the jury. Nor is it essentially different 
in an incidental case arising under the provisions of the Act 
of 1850. In the trial of the persons indicted for the rescue 
of Shadrach^ a captive under this Act. Judge Sprague in- 
structs the jury, that, of sixteen counts in the indictment, 
thirteen will fail, unless the jury shall find, from the evidence 
before them, that Shadrach was the slave of Debree. The 
other three are not under the provisions of the Act of 1850, 
but under the provisions of the law of 1790, and are not for 
rescuing a fugitive from service, but for rescuing a person 
legally held by the officers of the law, or for obstructing, 
resisting or opposing the service or execution of legal pro- 
cess. As far as the action rests upon the statute of 1850, so 
for it puts in issue to the jury the question of bond or free. 
Now, if the master proceed to recapture, the alleged fugitive 
may put himself in a position to have his rights determined 
by a jury and a Judge; and, if he proceed in any way, the 
rights of all third parties will be thus determined. But the 
statute of 1850, which prescribes the legal proceedings under 
this clause of the Constitution, deprives him of this privi- 
lege. 

Is not this anomalous legislation, which gives a full trial 
to third parties and strangers, and no trial at all to princi- 
pals 1 If there be such a right as that of recaption, cannot 
the alleged fugitive claim all the legal privileges it would 



77 

give him 1 Shall legal process be provided for the master, 
so that he may evade legal examination ! Here, it is seen 
that this clause of the Constitution, which, the Supreme 
Court have declared, " may properly be said to execute 
itself,"* when it operated by its own vigor, unrestricted by 
legislation, left the ascertaining of the rights of the parties 
to the due process of law. Not a single right could the 
master enforce by the strong arm of the law, without the 
verdict of a jury and the judgment of a Court. Had the 
Acts of Congress left this matter, in this essential respect, as 
they found it, fugitives would peaceably have a judicial in- 
vestigation of that question, which now can only be brought 
before a court, by harboring or concealing, or by resistance 
contrary to the form of the statue. Is it not worse than idle, 
to say that the intent of the Constitution is, that there should 
be no due process of law for fugitives from service, when, 
wherever and however we may approach this matter under 
the Constitution, instead of under the statutes ; whenever 
we can get at general principles of law, and away from the 
express prohibitions of the statute ; then, we find the pres- 
ence of a Judge and a jury as a thing of course 1 

But we are not left merely to infer, though irresistibly, 
from even undisputed dicta, or to gather as the inevitable 
consequence of established proceedings, that the Constitution 
contemplates other than a mere ministerial inquiry. There 
is a deliberate decision of the national Supreme Court, that 
cannot be reconciled with this " preliminary " hypothesis. 
The following is the passage: — 

" It is plain, then, that, -where a claim is made by the owner, out of pos- 
session, for the delivery of a slave, it must be made, if at all, against some 
other person ; and inasmuch as the right is a right of property capable of 
being recognised and asserted by proceedings before a Court of Justice, be- 
tween parties adverse to each other, it constitutes in the strictest sense, a 

* 16 Peters, 613. 



7S 



controversy between the parties, and a case ' arising under the Constitution 
of the United States, within the express delegation of judicial power given 
by that instrument."* 

The "judicial power" within which it is thus brought, the 
Constitution provides, shall be vested in courts whose judges 
shall be judicial officers, such as Commissioners are not ;| and 
as it is not a case in equity, nor of admiralty and maritime 
jurisdiction, it is a case in law, and " a suit at common law,"J 
where the right of trial by jury must be preserved. 

Judge Sprague, in his charge to the jury, in the " rescue 

* 16 Peters, 618. 
t Art. III., Sec. I. 

X Amendments, Art. VII, also Parsons v. Bedford, et. al, 3 Peters, 433, 
446-7. 

That, in the case between the claimant and the claimed fugitive, " the 
value in controversy exceed twenty dollars." See Lee v. Lee, S Peters, 
44-48. 

The statements of the above paragraph are not among the disputed points 
in the discussion of this statute. They have been placed beyond controversy 
by others who have argued this question before me. I have seen them 
maintained in the following efforts : a Speech of Jabez C. "Woodman, Esq., 
of Portland, made at a Convention at "YYinthrop, January, 1851, and pub- 
lished in the Portland Inquirer of February 20 ; a Speech of Hon. Horace 
Mann, delivered in the House of Repretentatives of the United States, Feb- 
ruary 28, 1851, and published among his "Letters and Speeches," p. 390, 
and the Opening Argument of Hon. Robert Rantoul, Jr., in "The Trial of 
Thomas Sims," at Boston, April 7, 1851. Neither Commissioner Curtis 
nor Judge Sprague specifically considered these points, nor attempted any 
answer to them, unless their own choice to call the proceeding preliminary 
be deemed an answer. It was only necessary that it should be stated here, 
in order to connect the parts of this essay. They have been established br- 
others ; and so far, at least, in spite of all obstacles, have the opponents of 
this statute succeeded in carrying forward their argument. 

Other points in this essay are original with others ; but after so many 
different persons have stated their objections to the constitutionality of this 
statute, it is difficult to say with whom in particular, they originated. I hope 
I am wronging no one by making, merely, a general acknowledgement. — 
Ante, 42. 



79 

cases," says that the remark above quoted "was an obiter 
dictum, and can only be reconciled with what was deliber- 
ately decided in the same case, by supposing that the judge 
who delivered the opinion, intended that Congress might 
legislate for it as within the judicial power, and provide for 
its being tried by a Court, and not that they must do so." 
It is hard to see the soundness of the modification here sug- 
gested. If this be a "case arising under the Constitution," 
as the Court say it is, " in the strictest sense ;" then, if Con- 
gress legislate upon it at all, they must legislate upon it as 
sack. If it is not such a case, then, it is without the consti- 
tutional extent of the judicial power, and Congress cannot, 
by legislation, bring it within. This reasoning of the Judge 
of the District Court rests upon a principle of constitutional 
interpretation, which, I think, has never before been recog- 
nized as correct, namely: that the limits of the "judicial 
power" are not fixed in the Constitution, but depend upon 
the will of Congress. 

Commissioner Curtis indulges the same delusion. He 
grasps this process, with joy that it is within the judicial 
power, of which he deems himself an humble minister; but 
forgets what brings it within the scope of this " power." If 
it be within the judicial power, it is so, because it is one of 
the cases named in the Second Section of the Third Article 
of the Constitution. Can Commissioner Curtis say that it 
is a case, arising under a Treaty; affecting Ambassadors; 
of admiralty and maritime jurisdiction ; a controversy to 
which the United States is a party, or between two or more 
States, or a State and citizens of another State, or citizens of 
different States, or citizens of the same State, claiming lands 
under grants of different States, or between a State or the 
citizens thereof, and foreign States, citizens or subjects? If 
it is neither of these; then, it is a Case in Law or Equity, 
arising under the Constitution and the Laws of the United 



80 

States; or else, it is without the constitutional limits of the 
judicial power. Whichever of these it is, the method of its 
trial prescribed by the Act of Congress under consideration, 
is plainly unconstitutional. No other case, mentioned in 
that Section, is similarly disposed of. 

But, it is said, Congress may, within certain limits, parcel 
out the judicial power, as may best subserve the speedy 
administration of justice. What follows ? What are those 
limits'? In order to bring a case or a person before the 
United States Courts, the Commissioners appointed by the 
Circuit Courts, may take certain preliminary steps, or during 
the trial of such a case, before the same tribunals, they may 
perform certain assisting and ministerial functions. This is 
all. They can do no more. The certificate, that a person 
owes service or labor in another State and has escaped there- 
from, is not given for the purpose of carrying the fugitive 
before the United States Courts, for trial, nor during such 
trial, as an ancillary act to forward its progress. It is, 
accordingly, without the line of their ordinary offices, and 
beyond any analogy which may be drawn from them. 

That Congress might authorize a Commissioner to imprison 
or bind over an alleged fugitive for trial in the United States 
Courts; and that this would be a preliminary and ministe- 
rial act, is perfectly plain. But the tribunals administering 
an Act of Congress, are to inquire, not what Congress may 
do, but what Congress has done. Has Congress parcelled 
out this case which is within the judicial power, in such a 
manner as to justify the present summary proceedings? 
Where is a final adjudication provided for? Where is it to 
be had? Without looking, at all, at the facts of the case: 
simply considering the statements of the tribunals who sus- 
tain and enforce this statute, here is the insuperable difficulty, 
in the way of their explanation. They talk about a part, 
and can tell of no whole. They plunge with Niagara, and 



81 



insist that they stop half way down. But it may be asked, 
can not Congress provide, that, under their statute, the inves- 
tigation should be commenced, and that, thereupon, the 
fugitive should be delivered to the jurisdiction of the Courts 
of the State, whence, according to prima facie evidence, he 
fled, for a full trial of his rights and liabilities. Suppose this 
could be done : the important question, then is, has it been 
so provided? Is such the law? But this cannot be done. 
The Constitution forbids it. That instrument provides, 
that fugitives from service shall be delivered to those to whom 
their service is due, to their masters ; and a delivery to the 
master, is one thing, and a delivery to the jurisdiction of a 
Court, is another thing, and altogether different. Moreover, 
to commit any portion of this delivery, and much more to 
commit the final and judicial part of the process to the Courts 
of a State, is to transfer the judicial power of the United 
States, from tribunals where the Constitution has vested it, 
to unconstitutional hands. This delivery is declared to 
devolve upon the general government; and its lawful agen- 
cies must perform it, the whole of it, leaving not a jot or 
tittle to other instrumentalities, or to the contingencies of 
chance. 

It is true that this opinion cannot be reconciled with that 
in favor of the constitutionality of the Act of 1793; and, of 
the two, the latter is clearly the obiter dictum. The latter, 
as has before been shown, was not a conclusion which the 
Court aimed at and reached, deliberately ; nor was it an 
opinion they were compelled to adopt in their process of 
investigation, in order to reach such a conclusion ; it was an 
entirely superfluous step beyond such a conclusion.* On 
the other hand, the opinion that the claim of a "party to 
whom service or labor is due," constitutes a " case arising 



* See 16 Peters, 622, and preceding. 



82 

under the Constitution," furnished the ground upon which 
they based their deliberate conclusion, that Congress had 
power to legislate for the execution of this clause of the Con- 
stitution : one of the chief conclusions of the case ; and one, 
without which the Act of 1850, or in fact, any similar act 
falls at once. This opinion can be reconciled with all that 
was deliberately decided in that case, while the other opin- 
ion, to which Judge Sprague clings so tenaciously, cannot be 
reconciled with the elementary definition of the right guar- 
antied by the Constitution.* It would probably never have 
occurred to the mind of any Court called upon to examine 
and apply the principles laid down in the Prigg case, that 
this opinion was a mere ohiter dictum, were' it not for an 
overruling desire, on the part of the tribunals, to lay hold of 
an expression of the Court in the same case, which was an 
obiter dictum, "a pure and simple" obiter dictum, and to 
make this dictum the ruling and only ruling principle'of the 
case. It is the assumed constitutionality of the Act of 1793 
which makes that decision 

" turn away 
And lose the name of action." 

It is this partial observation, taken by the Exploring 
Expedition, that wrecks all the mariners that attempt blindly 
to follow its chart. 

It is worthy of remark, that Judge Sprague's charge was 
given after Commissioner Curtis's opinion, and that this 
passage in the opinion of the Supreme Court perplexed the 
Commissioner. He admitted that the " claim for a fugitive," 
was within the judicial power: that position was necessary to 
his purpose. Cut he ignored the main part of the passage, 
that it is "a case arising under the Constitution." Not an 
American officer, whose duty he attempted to make analo- 



* See Commissioner Curtis's Opinion, and Judge Sprague's Charge. 



83 

gous to his own task, pretends to decide "a case arising 
under the Constitution;" and so, his arduous analogy brings 
him no support. Afterwards, upon more mature delibera- 
tion, the Judge felt compelled to overrule and set aside the 
whole passage as an " obiter dictum." 

It is not the only attack, which must be made upon the 
decisions as well as the reasoning of the Court, in this lead- 
ing case, if the Act of 1850 is to be sustained against the 
arguments that have been, and may be, made against its 
constitutionality. This remark of Judge Sprague cannot 
itself be sustained, without overruling what the Court had, 
earlier in their opinion, advisedly determined. The Court 
have not merely declared that this is a "case arising under 
the Constitution ; "but they have also denned its character 
which makes it such. Will Judge Sprague reject their 
definition? Will he say that the right of the claimants in 
these cases is not "a right of. property, capable of being 
recognized and asserted by proceedings before a Court of 
Justice, between parties adverse to each other," and guaran- 
tied by the Constitution 1 Until he does this, it is hardly 
competent for him to dei^r that it " constitutes, in the strict- 
est sense," " a case arising under the Constitution ;" for, the 
conclusion is not a departure from the direct line of severe 
logic, but the natural and necessary result of the previous 
reasoning. But the exigencies of the case in other relations 
demand all this boldness. While the interpretation of the 
right guarantied by this clause of the Constitution, fixed by 
the Supreme Court, is permitted to stand as sound law;, not 
only does the claim constitute "a case arising under the 
Constitution," but also, there is no resting place, not even 
the shadow of a foundation for the doctrine of a limited right 
of removal, without which, the Act of 1S50 would itself soon 
have to remove. 

If, now, there be any legal force in the meaning of the 



84 

word " discharged:'' if the Courts, in their reasoning upon 
this subject, have understood their own words : if an abso- 
lute delivery, requiring proof of ownership, be intended by 
the Constitution; and, accordingly, the case between the 
claimants and the claimed, is, as the Supreme Court have 
declared it to be, "a case arising under the Constitution;" 
then, it must be tried as such: the Acts of 1793 and 1S50 
are palpably and clearly unconstitutional, in their provisions, 
or rather, their want of provision for such a trial ; and there 
can be no constitutional surrender of a fugitive from service, 
without a full trial by due process of law, in the presence 
of a judge»and by a regularly empannelled jury. 

Indeed, how clearly is the whole law upon this matter, 
stated in the judicial language, which stands as the motto of 
this division of this essay ! Proof of ownership — of course, 
then, upon trial — precedes the delivery, and the right of 
removal merely follows and flows from it. 



PART THIRD. 



The Difference between the Extradition of Persons' 
Charged with Crime, and the Delivery of Persons Held 
to Service or Labor. 



" Individuals on each side claimed the property ; and, therefore, their 
rights could be brought into Court, and there contested as a case in law 
or equity. The demand of a man made by a nation stands on different 

principles." 
11 The case was, in its nature, a national demand made upon the nation. The 
parties were the two nations. They cannot come into Court to litigate 
their claim, nor can a Court decide on them. Of consequence, the demand 
is not a case for judicial cognizance." — Argument of John Marshall, 
afterwards Chief Justice of the United States, in the case of Jonathan Rob- 
bins, in the House of Representatives of Congress, March 7, 1800. See An- 
nals of Congress, 1799-1801, 613, 596. 



It is useless to attempt to conceal the inference that neces- 
sarily arises from the view advocated in these pages, in 
connection with the fact, that the same objections might be 
made against the Act of 1793, namely : that, in reference to 
fugitives from service, Congress was inaccurate in its legis- 
lation, as early as 1793, within four years after the organi- 
zation of the government under the Constitution. What 
facts can be found to sustain this presumption 1 j 



86 

Here are two clauses of the Constitution, found in juxta- 
position, and somewhat similar in appearance. A difficulty- 
early arises between two States, in relation to the execution 
of the first part of these two clauses, that providing for the 
rendition of fugitiues from justice; and Washington, then 
President, laid the correspondence before Congress, that that 
body might regulate the execution of that provision of the 
Constitution. Congress took up the subject, and legislated 
both clauses into one Act. Such a method of legislation 
opens a wide door for inaccuracy and error. If we find 
mistakes in statutes so enacted, we need not be startled or 
surprised : their entrance is easily accounted for. 

But we are not left without positive proof, that Congress, 
very early, confounded these two clauses of the Constitu- 
tion together. Between the Act of 1793 and that of 1S50. 
there is another act, or rather section of an act, in relation 
to fugitives from service, found in the District of Columbia. 
An Act, approved March 3, 1801, concerning the District of 
Columbia, contains the following as its Gth Section: — 

" $ C. That in all cases, where the Constitution or laws of the United 
States provide that criminals and fugitives from justice, or persons held to 
labor in any State, escaping into another State, shall be delivered up, the 
Chief Justice of the said district shall be, and he is, hereby, empowered and 
required to cause to be apprehended and delivered up such criminal, fugi- 
tive from justice, or persons fleeing from service, as the case may be, who 
shall be found within the district, in the same manner and under the same 
regulations as the executive authority of the several States are required to do the 
same; and all executive and judicial officers are hereby required to obey 
all lawful precepts or other process issued for that purpose, and to be aiding 
and abetting in such delivery." 

It will be seen that all jurisdiction over persons fleeing 
from service, found within the District of Columbia, is 
granted to the Chief Justice of said District; and he is to 
cause them to be delivered up in the same manner as the 
executive authority of the several States are required and 
empowered to do the same ; and as the executive authority 



87 

of the several States, neither by the Constitution, nor by the 
Acts of 1793 or 1850, are empowered to deliver up fugitives 
from service, in any manner, the Chief Justice of said Dis- 
trict is not empowered or required to do it all ; and that Act 
of Congress, so far as it relates to fugitives from service, 
found within the District of Columbia, is entirely inop- 
erative. 

Here, then, we have the fact, that the Congress of 1801, 
in its legislation upon this matter, not only confounded to- 
gether two separate clauses of the Constitution, but over- 
looked the fact, that the Act of 1793 had made different pro- 
visions for the delivery of two classes of fugitives, and 
assumed that its provisions in relation to both classes, were 
entirely analogous; and upon this assumption, framed a 
piece of legislation in such a manner as to give no force to 
its provisions for the delivery of fugitives from service. 
Whatever remarks may have been made by the courts, or 
those contending for the constitutionality of the Acts of 1793 
and 1850, in relation to the superior political wisdom, the 
thorough acquaintance with the provisions of the Constitu- 
tion, the almost unerring understanding of its intent, which 
was embodied in the Congress of 1793, must apply, with 
some force, to the Congress of 1801. Some of the wisdom, 
which illustrated the period from Eighty-six to Ninety-three, 
must have survived the last century ; it cannot all have 
died out in eight years. If then, we actually find gross 
inaccuracy in the legislation of 1S01, we shall hardly be 
presumptuous, if, upon critical examination, we conclude 
that we have discovered the same in that of 1793. If the 
Congress of 1801, with eight years of added observa- 
tion and experience of the working of the Constitution, 
with those two clauses commented upon, and to a cer- 
tain extent, kept distinct by the Act of 1793, shall have 
confounded them together, and not only them, but also the 



83 



entirely dissimilar provision of the Act of '93. it is not at all 
improbable that the Congress of '93, without any such com- 
ment, should have fallen, though not so deeply, into the 
same error. Nay more, this confusion which existed in 
1801, must have had an origin ; and as there was no legis- 
lation upon the subject between the two periods, it is most 
easily accounted for by supposing its existence, as early as 
1793. 

But, fortunately, there is no need of labored effort to 
prove, that there has been such a confusion of these two 
clauses, as is here asserted. This confusion is a fact, which 
appears in every discussion of this subject. It is even to be 
found in the opinions of the Supreme Court. Judge Story, 
in giving the opinion of that tribunal, in the case before 
quoted, remarks, " There are two clauses in the Constitution 
upon the subject of fugitives, which stand in juxtaposition 
with each other, and have been thought mutually to illus- 
trate each other," and then proceeds to point out the two 
clauses now under consideration. An ingenious commenta- 
tor upon this remark, acting under the authority of the Act 
of 1850, and endeavoring to establish its constitutionality, 
says, " Let me ask, by whom they have been so supposed 1 
Manifestly by the Congress, who enacted the law of 1793, 
which provided for carrying both these clauses into effect, 
in the same statute; "* thus arriving at the same conclusion 
in regard to the Congress of 1793, to which this investigation 
has led us, namely: that they deemed these two clauses 
essentially analogous. Story's Commentaries on this portion 
of the Constitution proceed from this presumed analogy. 
Judge Sprague's charge to the jury is based upon the essen- 
tial identity of these two clauses, and Commissioner Curtis's 
opinion has the same foundation. All the arguments in favor 

* Trial of Thomas Sims, 42. 



89 

of the constitutionality of the Act of 1850, assume its exist- 
ence. The friends of this statute cannot bring to bear the 
first piece of their logical artillery, without showing that 
their whole science of gunnery rests upon this assumption. 
The confounding together of these two clauses, is one of the 
facts of the case ; it appears from the pleadings, not simply 
as having existed in the Congress of 1793, but as existing 
ever since, and now prevalent, not only in the halls of Con- 
gress, but also in the courts of justice, and having fast hold 
of the public mind. It must be recognised in this essay ; 
and it leads -us to the next step in the argument, viz: to 
show that it is unfounded. 

If it has been shown that the second of these clauses 
requires an absolute delivery, by virtue of the right of prop- 
erty; then, while it is known that the other requires a 
delivery for a specific purpose connected with the adminis- 
tration of justice, there is little need of further analysis to 
show that the two are not essentially alike. It cannot be 
amiss, however, even at the expense of repeating what has 
been written in other connections, to approach the question 
of their analogy, as though nothing touching it had pre- 
ceded. Laying, therefore, these two clauses of the American 
Constitution, yard arm and yard arm, let us board them 
both. Let us examine their papers, and see if, though, per- 
haps not of a different national character, and sailing under 
different flags, they are not afloat on the ocean of legislation, 
with altogether different powers and purposes. 

The words of one are : — 

" A person charged in any State with treason, felony or other crime, who 
shall flee from justice and be found in another State, shall, on demand of 
the executive authority of the State from which he fled, be delivered up to 
3e removed to the State having jurisdiction of the crime."* 

* Art. IV., Sect. 2, Second Clause. 
7 



90 

Those of the other are : — 

" No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation there- 
in, be discharged from such service or labor ; but thall be delivered up, on 
claim of the party to whom such service or labor may be due."* 

It has been contended, and apparently, with a great deal 
of force, that there was a material difference in the words 
used to describe the subjects of these two clauses : that the 
facts of being " charged with crime," and of being " held to 
service or labor," are in law essentially different; that they 
differ not only as crime differs from contract, but that the 
word "charged" denotes a relation to "crime," different 
from that which the word " held" denotes to "service;" 
that these words denote legal facts which belong to two dis- 
tinct classes, widely different in their legal character and 
consequences. It has been urged that being " charged with 
crime" is a preliminary fact ; that is, preliminary to further 
legal investigation : that, if it were judicially established by 
due process of law, finally and irreversibly settled, after the 
fullest trial, that a person is " charged with crime " — that this 
fact would only subject him to this necessity, the necessity 
of undergoing a trial to establish his guilt or innocence, 
with the preliminary incidents to such trial. But that, on 
the contrary, the fact of being " held to service or labor " is 
a final fact ; that is, as soon as this fact is established, there 
must be an end to legal proceedings ; that, when it is judi- 
cially decided that a person is held to service or labor, or 
what is equivalent, owes service or labor to another ; the 
legal consequence follows, thar. he must yield such service 
or labor to that other, and that, in some form, an execution 
must issue to compel the performance of that service, or to 
give the master the power to exact it. This distinction ap- 



* Art. IV., Sec. 2, Third Clause. 



91 

pears to be real ; it seems also to carry with it important 
legal consequences ; but the courts and officers to whom it 
has been addressed, have failed to perceive it; and what 
some of the ablest members of the bar, in our country, have 
in vain attempted to make plain, it is useless for me, to try 
to illustrate and enforce. 

There is another difference between these two clauses, 
which has not yet been so fully brought before the courts, 
which, possibly, they may not ignore. Perhaps, both differ- 
ences taken together may do away with the idea, that these 
clauses are essentially analogous. Turning from the sub- 
jects of these two clauses, let us, for a moment, look at their 
predicates. We find that persons " charged with crime," are 
to "be delivered up to be removed to the State having 
jurisdiction of the crime" or what is in fact the same, "to 
the State from which they may have escaped or fled." They 
are delivered for "the special and limited purpose" "of 
removal." To the State demanding them, is secured the 
right of removal, the limited, ministerial right; ministerial, 
because the character, in which they are demanded and 
surrendered, is such as necessarily to imply that they are 
removed for the purpose of a trial by due process of law. 

On the other hand, persons " held to service or labor" are 
to be delivered up : without qualification or restriction : 
simply delivered up "on claim of the party to whom such 
labor or service is due:" for no "special or limited purpose" 
whatever: delivered as "owing service or labor," to the 
master ; and the character in which they are claimed, neces- 
sarily implies that they are delivered up, in order that the 
master may have power to exact such service at their 
hands. 

Nay, more, the difference in the phraseology of these two 
clauses, is based upon the fact, that, while the question of 



92 

crime can properly, and by the Constitution,* be tried only 
within the jurisdiction where the offence has been com- 
mitted; the question of service or labor under the laws of a 
particular State, may be tried anywhere; and the purpose 
of this difference is, that the fugitive from justice shall be 
sent back to the State having jurisdiction of the crime, for 
trial, while the fugitive from service, must, first, have a 
trial, and then, be delivered up to the party to whom he 
owes service, in order that he may exact labor at his 
hands. 

There lie the two clauses of the Constitution. Side by 
side, it is true; in juxtaposition and under the same article, 
no one will deny. But they are not one and the same 
clause. The one contains words of limitation which the 
other has not; and unless we disregard that established rule 
of legal interpretation, that all the words of an instrument 
are to be considered as having meaning and force; unless 
important words, significant enough to change the whole 
character of the legal proceedings under these clauses, unless 
such words found in one clause, and not to be found in the 
other ; expressed in one, and omitted in the other, are to be 
deemed and treated as though they were in both ; the two 
clauses cannot be considered as essentially analogous. In 
the first clause, there are words which limit the delivery to 
the purpose of removal. In the second, are no such restrict- 
ing words; and unless we transfer from the first, the words 
which limit the delivery, and insert them in the second (with 
the necessary variation in the adjunct), so that the second 
clause shall read, ''• shall be delivered up on claim of the 
party to whom such service or labor may be due," " to be 
removed to the State or territory whence such persons may 
have escaped or fled ;-" the two clauses will remain essen- 

* Amendments, Art. VI. 



93 

lially different; different not only, as has been contended, in 
he class of persons upon whom each is to operate, but dif- 
ferent also, in their operation, in the disposition of these 
persons, in what the Constitution directs shall be done with 
them. 

The ideas of an analogy between these two clauses, and 
of a limited right of removal, seem twin to each other, 
mutually dependent and supporting ; both must fall together. 
Commissioner Curtis, in the case of Thomas Sims, used the 
following language : " the right secured by the Constitution 
— namely, the right of removal." He is a man somewhat 
learned in the law, and has, undoubtedly, read the Consti- 
tution of the United States. Can he point out the portion of 
that instrument, which "secures" to masters of fugitives 
from service, the right of removal? The Article and Sec- 
tion? Fugitives from justice are to be removed, and the 
State demanding them, has the right to remove them. But 
there is no such provision in regard to fugitives from service. 
As the Constitution now stands, the idea and conception, 
the refuge, screen and hiding place of a limited right of 
removal of fugitives from service, is swept away, and the 
two clauses still remain, as they ever have been, essentially 
distinct. 

So wide, indeed, is the difference between them, that one 
who assumes their essential similarity, will hardly give the 
characteristics of either, with any thing like legal accuracy. 
Mr. Justice Story, in his Commentaries on the Constitution, 
treating these two clauses as analogous, says of the first : — 

" All that would in such cases seem to be necessary, is, that there should 
be jH'ima facie evidence before the executive authority to satisfy its judg- 
ment that there is probable cause to believe the party guilty, such as, upon 
an ordinary warrant, would justify his commitment for trial."** 

* Story's Commentaries, Book III., Chap. XL., 677. 



94 

This is a statement of one side of this far famed analogy ; 
and coming from such an authority, it is not lightly to be 
doubted. But, with the statute before him, upon the same 
subject, one may venture to say, that such is not its provision, 
and that the Act of Congress of 1793, within four years 
from the adoption of the Constitution, is, of the two, the 
better authority. Its Frst Section points out the duty of the 
"executive authority," in the following words: — 

" Whenever the executive authority of any State in the Union, or of 
either of the territories Northwest or South of the river Ohio, shall demand 
any person as a fugitive from justice, of the executive authority of any such 
State or Territory to which such person shall have fled, and shall moreover 
produce the copy of an indictment found, or an affidavit made before a 
magistrate of any such State or Territory as aforesaid, charging the person 
so demanded, with having committed treason, felony or other crime, certified 
as authentic by the governor or chief magistrate of the State or Territory 
from whence the person so charged, fled, it shall be the duty of the exec- 
utive authority of the State or Territory to which such person shall have fled, 
to cause him or her to be arrested and secured, and notice of the arrest to be 
given to the executive authority making such demand, or to the agent of 
such authority appointed to receive the fugitive, and to cause the fugitive to 
be delivered to such agent when he shall appear." 

It will be seen, at once, that this Act does not leave this 
duty to the discretion of the executive authority. He is not 
required to examine witnesses, and if there be prima facie 
evidence of guilt, to cause the surrender, and otherwise, not 
to do so. He is not to weigh the probability of his guilt. 
So far from weighing that question, as a magistrate would, 
prior to committing for trial, the executive does not consider 
it at all; does not even have the party before him. Not 
only has the learned author apparently misstated the object 
of the evidence; but also, the amount required does not 
answer his description, "such as upon an ordinary warrant 
would justify his commitment for trial." An affidavit made 
before a magistrate will not authorize a commitment for trial. 
ThereVnust bean examination of the party, and the hearing 



95 

of testimony, neither of which are to be found in this pro- 
ceeding. The amount of evidence of guilt required, if the 
Governor were allowed to weigh it at all, would be that, 
which would authorize a magistrate, not to commit for trial, 
but to issue a warrant for arrest in order to an examination, 
which would precede a commitment for trial. He is not 
even required, absolutely, to determine the identity of the 
party; and from the nature* of the proceeding, he cannot, 
absolutely, determine even this fact; for he does not (so to 
describe it) point out to the sheriff a certain individual 
among others, or give him a description of his person, so that 
the officer may everywhere recognize, and safely take him, 
whatever may be his name. But he issues his warrant 
directing the officer to arrest the man therein named, the 
person named in the papers forwarded to him; and the 
officer must identify the person at his peril. 

But what fact, then, has the executive, in such cases, to 
ascertain, and to prove what, are any papers laid before him, 
in the premises'? If we keep in our minds the words of the 
Constitution, we shall, perhaps, get an answer. Let us 
recollect that, in order to bring a person within the operation 
of this clause, he must be, not guilty, nor probably guilty, 
only, charged with crime, yet still, positively charged. The 
Constitution puts into the case no such important fact as guilt. 
It puts in a less important fact, easily ascertained, beyond 
controversy; and then, requires this fact to be positively 
proved. A distinction as to the purpose for which documen- 
tary evidence may be produced, is also in point here. A 
document may be introduced as evidence to prove the facts 
therein stated, or merely to prove that there is such a docu- 
ment, to prove its own existence as a separate fact. 

Now, to which of these two classes do the documents 
brought before the executive authority of a State, accompa- 
nying a demand for the delivery of a fugitive from justice, 



96 

belong? If the Constitution described a fugitive from justice 
as a person guilty of crime, or probably guilty, and these 
papers should then be used, we might say, they were intro- 
duced to establish the fact therein stated, the guilt or proba- 
ble guilt of the party. Then, they would be prima facie 
evidence, and of a very poor kind. But the Constitution has 
a different phraseology : its clause describes a fugitive from 
justice as a person charged with crime; and these documents 
are introduced to prove that fact. Now, an indictment is 
itself a charge: an affidavit before a magistrate is a charge; 
is so considered by the statute. Having, then, before him, 
an authentic copy of these documents, the executive author- 
ity acts, not so much from proof of the fact as testified to by 
others, certainly, not from any prima facie evidence, but 
from evidence of the highest character; the papers being 
authenticated, from the presence of the fact itself, from the 
knowledge of the charge, with his own senses. The fact 
does not depend at all upon the character or correctness of 
the witnesses, but simply, upon the truth of the copy. Did 
the clerk make a true transcript? If so (and this is proved 
by the governor's certificate), then, there is, most certainly, 
a charge of crime; and the delivery must be made.* 

If, then, the operation of the law of 1793, has been correctly 
stated, it will be seen that there is no examination whatever 
by the executive authority, into the question of the party's 
guilt; that evidence of guilt, equal to what would be suffi- 
cient to authorize a commitment for trial, is not required ; that 
pri??ia facie evidence of guilt is not before him ; that prima 
facie evidence of any kind is not admitted in the proceed- 
ings. The only fact to be proved, is, that the party is charged 
with crime; and that fact is proved by a copy of the charge 
itself. Only, by forgetting the phraseology of the Constitu- 

* See Appendix, 1., with reference to the Executive practice under this 
Clause and Act. 



97 

tion, by keeping clear of the provisions of the Act of 1793, 
and overlooking the difference between the two purposes for 
which documentary evidence may be introduced, can this 
definition of executive duty under the clause relating to 
fugitives from justice, be sustained. Otherwise, it is seen to 
be entirely inaccurate, and with it, falls the chief foundation 
for the analogy, which individuals and courts have attempted 
to establish between proceedings in the case of a fugitive 
from justice, and proceedings in the case of a fugitive from 
service. Upon Judge Story's basis, builds, with others, the 
architect of our day, Commissioner Curtis, his structure of 
the Order of 1S50; builds, and deems his house secure; but 
beneath comes the treacherous Act of 1793, and steals away 
the foundation. 

In this connection, let me quote another specimen of reas- 
oning from the case of fugitives of one class, to the case of 
fugitives of the other class. 

" Suppose, the law had required only, that the certificate should stale, that 
the fugitive was alleged or charged to owe service; would that have changed 
the legal character of the inquiry ? It would have made the law more objec- 
tionable, but not have rendered the proceeding more summary."* 

Did Judge Sprague really say this and the correspond- 
ing sentence which" will soon follow, or has a malicious 
reporter put it into his mouth, to bring his opinion into 
contempt) Most certainly, that change of the phraseology 
would change the whole nature of the proceedings, and 
indeed, require a reconstruction of the clause. Suppose 
it were proved, and judicially established, that one per- 
son is charged (though that is hardly the word appro- 
priate to this connection) is alleged or claimed to owe service 
or labor to another. What follows as the legal consequence 
from this fact? Not that he must render service or labor, 

* See Judge Sprague's Charge. I have followed the report in the Morn- 
ing Commonwealth of June 6, 1851. 



98 

for it has not yet been ascertained, that any such service is 
due. There could, in such a case, he no delivery to the party 
to whom such service or labor is due, for that party has not 
been ascertained. But it would follow, that there must be a 
trial to test the truth of the charge, to inquire into the cor- 
rectness of the allegation, to ascertain the validity of the 
claim. Then, the decision would not touch the ultimate 
rights of the parties; and we might properly use language, 
which is now misapplied to proceedings under the Act of 
1850. We might call it a " preliminary examination," and 
we might talk of a further and final investigation, and per- 
haps, name a "limited right of removal:" for the relation of 
the parties would necessarily imply such a trial, and the 
papers in the case would be likely, in some way or other, to 
recognise it, and we should know what the purpose of the 
removal was; all of which things are now hid from us. 

The next sentence, which the reporter has given us, as 
from Judge Sprague, is : — ■ 

" Suppose, that a treaty, instead of saying that a person charged, should 
say that a person guilty of a crime in a foreign country, should be delivered 
up."* 

This alteration would also affect the character of the pro- 
ceedings; and as the change first suggested would do much 
towards suiting the relation of the parties and the question 
to be ascertained, to the summary proceedings under the Act 
of 1S50 (not taking from them their summary character, but 
yet, removing the objections to that character); so would 
this change entirely unfit the character of the party and the 
question to be ascertained, to the mode of proceeding, at 
present followed with regard to fugitives from justice. It is 
submitted, that no President would attempt to execute such 
a treaty; that no governor of a State would venture to send 

* See Judge Sprague's Charge. 



99 

back fugitives from justice, under a clause so framed. Each 
would say : Before this party is given up, his guilt must be 
established. To determine the guilt or innocence of a per- 
son, does not belong to my office, and to send a person away 
from the State, as guilty, with the stigma of guilt fastened 
upon him, as legally answering to the description, "guilty," 
and of course, delivered to the natural consequence of guilt, 
which is punishment; to deliver a person up thus, without 
having fully heard and tried his case, would be a usurpation, 
greater and more unjust even, than unlawfully to leave the 
executive chair, and take my seat upon the judicial bench, 
and attempt to discharge the functions which the Constitu- 
tion has forbidden me to touch. If you have brought with 
you, the record of a conviction after a trial according to your 
forms of law, the accused then being in your jurisdiction, 
and present at the trial, I can authorise his surrender. Other- 
wise, as there is no Court here, having jurisdiction of the 
offence, and the party cannot here be tried; if guilty, he 
must go unpunished, and the treaty must fail to be exe- 
cuted.* 

Yet, severe and summary as such proceedings would be, 
in regard to "crime," so summary, that such a clause in a 
treaty or Constitution could not be executed, save upon con- 
victs, they are no more summary than the proceedings pre- 
scribed by the Act of 1S50, in regard to " service or labor," 
and the tribunals clothed with power under this Act, would 



* The system of law is not illogical or disjointed. It does not require 
facts to be judicially established, without purpose. It attaches to each fact 
its proper consequence. Now, the only consistent purpose of proving the 
fact of guilt, and its only proper consequence is punishment; and, in his 
argument in the case of Jonathan Robbins, Chief Justice Marshall, expressly 
declares, that, where a treaty " instead of stipulating to deliver up an offender, 
should stipulate his punishment, provided the case was punishable by the 
laws and in the Courts of the United States ;" that would be " a case in 
law or equity, proper for judicial decision." — Annals of Congress, 1799- 



100 



do well to imitate the moderation, which, without doubt, 
would characterise the executive authorities of our States or 
nation, under analogous circumstances. 

Let me notice one more attempt to unite in matrimonial 
bonds these two clauses, in order that their issue may be 
made legitimate, one more essay to justify unconstitutional 
legislation, by assuming a similarity which docs not exist. 

"In both cases, the Government of the United States surrenders the fugi- 
tive, or provides for his surrender, to the party to whom it has stipulated, 
that he shall be delivered up. That party, in the one case, is the owner who 
claims a rkjht to hold the fugitive after he has received him. In the other, 
it is the State which claims to hold and punish the fugitive after it has received 
him."* 

Without a trial in both cases? Which State claims any 
right to hold and punish a fugitive after it has received 
him, without giving him a fair trial by due process of law? 
Let us hear nothing about "stipulations /" " Claims " is the 
word. Wli ich State claims this despotic prerogative? Against 
which of the States does this base accusation lie? Name 
her, that the other thirty may avoid her bad faith! Point 
her out, that the traitor to honor may be blotted from the 
list of fair dealing sovereignties ! Not one of the States 
that face the Atlantic, or line the Gulf, not one of those, 
that border the Northern Lakes, or between whom there 
is a channel grooved for the mighty Mississippi, nor that 
one, that alone looks from her golden hills, out upon the 



''801, G07. The right of the fugitive to be tried before he is punished, 
hich no civilised government would deny, would be the same, whether 
his punishment should take place in the country where he is found, or in 
that to which he is to be carried ; and it is because he has this right, and 
because he can not properly be tried, save where the crime is alleged to have 
been committed, that treaties provide for the delivery of persons " charged 
with crime;'' 1 using words of description, which, necessarily, imply a trial as 
the object of delivery . 

* Trial of Thomas Sims, 43. 



101 

broad Pacific, makes such claim. Of this Union, which 
stretches, like a zone, across the continent, whose people 
nature and providence mean indissolubly to knit together, 
and which nothing but a gigantic crime threatens to dis- 
solve, but which, in a few years, will tread that crime 
under foot, and move on to bless mankind, for ages; of 
this Union, not a member is guilty of such an outrage 
upon state comity and personal rights. Not a State, nor a 
Territory that hopes to be a State, claims to hold and punish 
a fugitive, without due trial; and not a master pursues a 
fugitive, that does not make such claim with his entrance 
into Court. The State claims only to hold her fugitive for 
trial, and to punish him, if found guilty; not otherwise. 
By omitting this distinction, which was essential to the truth 
of the sentences, an appearance of analogy between the two 
cases may be raised. But what kind of analogy is that, the 
words used to support which, have no force without a lie 
understood? 

The fact, that the question, whether a person be held to 
service or labor, or not, enters into the issue, in the trial of 
all the actions that may incidentally arise under the Acts of 
1850 and 1793, and under the Constitution, has a phase 
which throws light on this question of the analogy between 
"the two clauses of the Constitution which are supposed, 
mutually to illustrate each other." Let us put by the side 
of the fact, which has been stated in regard to trials under 
one clause, the opposite fact, that in no trial, which may 
arise under the other clause, can the guilt or innocence of 
the party charged with crime, be put in issue. If a person 
be arraigned and on trial for forcibly setting at liberty, or 
rescuing the fugitive from justice, he cannot show that the 
fugitive was not guilty of the crime charged, and therefore, 
not within that provision of the Constitution, or the Act 
which regulates its execution. The person rescued is not 



102 

named, either in the Constitution, or in the statute, as guilty, 
and cannot be described in the indictment as guilty. The 
question of his guilt or innocence cannot, possibly, be brought 
before the Court; and not a single count in the indictment, 
not even those under the Act of 1793, can be made to depend 
upon the fact of his guilt or innocence. 

Now, if there be this essential analogy between these two 
clauses, which has been supposed to exist, how happens it 
that, when carried out into legislative enactments, they ex- 
hibit so striking a contrast? If there is no essential differ- 
ence in the description of the subjects of these two clauses, 
if the word "charged" denotes the same relation to "crime," 
that the word "held" denotes to "service or labor;" if "crime" 
and "service," guilt and obligation are terms in these clauses, 
strictly correlative, why does it not appear in the proceed- 
ings? Why is government not compelled to prove the 
guilt of a party rescued from the agent of a State, under the 
Second Section of the Act of 1793, and compelled to prove 
the service of a man rescued from the marshal or owner, or 
else, fail to convict the rescuers, under the Fourth Section 
of that Act, or under the Act of 1S50? Why do thirteen 
counts of the indictment against the persons now await- 
ing their trial for a rescue, in Boston, fail, unless it be proved 
that Shadrach was the slave of Debree: and at the same 
time, an indictment for the rescue of a fugitive from justice, 
cannot be framed so as to put in issue the question of his 
guilt? I know, that analogies do not always keep step; and 
the theologians tell us that parables ought not to be made to 
go upon all fours. But parables ought to touch the ground 
somewhere, and things analogous ought to have the same 
motion. But these two clauses do not even this : in the 
words of the old hymn, they "neither fly nor go" together. 

It is well known that an article stipulating for the same 



103 



general object as the first of these two constitutional clauses, 
is often to be found in international treaties. The surrender 
of fugitives from justice, has been a matter of stipulation 
between this country and C reat Britain, ever since Jay's treaty 
of 1791. It is also well known that that subject was, early 
in the history of our government, searchingly and thoroughly 
discussed in our national House of Representatives; and that 
the speech of Mr. Marshall of Virginia, afterwards Chief 
Justice of the United States, made during this discussion, 
contained a statement, of the nature and object of that arti- 
cle in the treaty, so clear; and showed to which division of 
governmental powers and duties that matter belonged, and 
upon which department of the government, the execution of 
that stipulation devolved, so satisfactorily, that it has since 
been received as a correct exposition of the Constitution upon 
that subject; and has been regarded as of influence, if not 
of authority, equal to a decision of a Court. Some of the 
questions, then at issue, are now in controversy, in this dis- 
cussion ; and the case and the speech itself have been alluded 
to from the bench.* Let us see if the difference between 
these two clauses of the Constitution, cannot be made clearer 
by a restatement, in connection with some extracts from 
that celebrated argument.f 

One clause provides for the delivery of a person charged 
with crime, by one sovereignty, from its jurisdiction, to 
another sovereignty, for its jurisdiction, for the purpose of 
trial: which delivery is Extradition. 

How could this characteristic of Extradition, namely: that 
it is international — escape the notice of tribunals; especially 
of one who, like Judge Sprague, (if we may infer simply from 
his reference, and not from the statements of his charge) had 

* See Judge Sprague's Charge. 
Annals of Congress, 1799-1801, 596. 



104 

read Marshall's argument in the case of Robbins; and there 
seen these words 1 

" The case was, in its nature, a national demand, made upon the nation. 
The parties were the two nations. They cannot come into Court to litigate 
their claims, nor can a Court decide on them. Of course, the demand is not 
a case for judicial cognizance." 

The other clause simply secures to the inhabitants of each 
State, the power of enforcing before the Courts in another 
State, a right which they enjoyed in their own ; a personal 
right, that of property : which is no more Extradition, 
than the delivery to his owner, of a stray horse, the surrender 
to him, of his vessel at the wharf; and not legally, only in 
appearance, more Extradition, than the collection in one 
State, of a note due in another. It, as the law now stands, 
knows even no change of jurisdiction ; for the whole process 
is not before the Courts of separate States; but in the United 
States tribunals, and by the officers of the Federal Govern- 
ment, whose sovereignty and jurisdiction stretch from the 
St. Croix to the Gila, as far even as the " Fugitive Slave 
Act " itself.* 

This distinction between the personal right of property, 
and the State's right of sovereignty, the tribunals anxious to 
uphold the Act of Sept. 18, 1S50, try in vain to pull down. 
Years ago it was established in our country's jurisprudence, 
by the strong hands of Marshall, when he said : — 

"Individuals, on each side, claimed the property, and therefore, their 
rights could be brought into court, and there contested as in a case of law 
or equity. The demand of a man, made by a nation, stands on different 
principles." 

In the case of a fugitive from service, the whole process is 
before a Court, or something that sits in its place. 

These extracts, as well as the tenor of the whole argu- 

* These characteristics of extradition were well shown by J. C. Woodman, 
Esq., of Portland, in an article published in the Portland Inquirer of Nov. 
13, 1851. I must thank him for calling my attention to them. 



105 



merit, go further, and show that, where a personal claim is 
in contest; that, where the right of property is to be ascer- 
tained, there is "a case for judicial cognizance," "a case 
of law or equity; " and precisely at this point, we find our- 
selves able to reconcile into a harmonious unity, a real iden- 
tity of principle, Marshall's early exposition of the one 
clause, with the later decision of the Supreme Court, upon 
the other, when they declared that it contemplated "a case 
arising under the Constitution." The great object of Mar- 
shall, in his speech, was to show that the case of a fugitive 
from justice, under a treaty, was not "a case" within " the 
judicial power ; " and accordingly, that the Executive did 
not encroach upon the judiciary, when the President deliv- 
ered llobbins over to the English government : and one great 
aim, and, I may say, the great aim of the Supreme Court, 
in Prigg's case, was to show that the case of a fugitive or 
an alleged fugitive from service, was within " the express 
delegation of that power ; ' 2 and therefore, beyond the reach 
of state legislation. The law now becomes consistent and 
symmetrical. The very reasoning, by which Marshall estab- 
lished that the question of the delivery of Robbins, was 
"not a case for judicial cognizance," shows that the ques- 
tion of the delivery of an alleged fugitive from service, is (: a 
case for judicial cognizance;" and before the half century 
expires, the Supreme Court give this inference their pos- 
itive sanction. Both interpretations give a similar force and 
effect to the word " claim." Let, then, the tribunals busy to 
undermine the later opinion, keep some courage in reserve 
for their march fifty years backward to attack the earlier 
and long unquestioned authority; for it hinders their con- 
struction as much as the other. 
8 



106 

Mr. Webster, in a speech, in the Senate, tells us : — 

" There is a class of notions which run in a sort of periodical orbit. 
They come back upon us once in fifteen or twenty years."* 

In the discussion of the statute of September IS, 1850, we 
have the return of a comet from a wider orbit, a re-appear- 
ance in the heavens, after a fifty years absence. Mr. Liv- 
ingston, in his resolutions condemning the course of the 
administration in this case of Robbins. declared that the 
judiciary power extended " to all qvestions" &c. Mr. 
Marshall pointed out the error, and made it appear that its 
extent was u to all cases." The error, thus laid, slept till 
the administration of the statute now under consideration, 
revived ; it and now, has arisen Commissioner Curtis to break 
down this distinction, from a new side, from an anxiety to 
restrict, instead of to enlarge, the scope of the judicial power. 
He declares that the judicial power does not extend "to all 
questions;" and seems to think that, therefore, one who is not 
a judicial officer, may decide " a case." He hardly shuns the 
very word used by Mr. Livingston; and leads himself directly 
into that statesman's error by speaking of " a class of in* 
quiries"^ " confided to officers not constituting a part of the 
judiciary;" and in the course of his opinion, reasons from 
the "question " which the Commissioner of Patents decides, 
to the "case" which he was attempting to determine. He 
seems conscious of having entered a broad field of compari- 
son ; and complains that his duty led him where the lines of 
distinction became difficult to trace. He need not have lost 
his way, if he had been willing to remember, that every- 
thing which the Constitution calls a " case," must be decided 
by a Judge. The Virginia Jurist kept his head clearer than 
the Massachusetts Commissioner, and found no difficulty in 

* See Works, Vol. V., 886 : California Public Lands and Boundaries, 
t Trial of Thomas Sims, 40, 41. 



107 

following the line of distinction which the latter lost, and 
abandoned all hope of tracing, lie says :— 

" Whether a patent for land shall issue or not, is always a question of 
law, but not a question which must necessarily be carried into Court.* 

Therefore, no analogy can be drawn from the determina- 
tion of this "question" or the answer to this "inquiry" to 
the decision of a case in Court. Therefore, the Commis- 
sioner of Patents must not attempt to decide "a case arising 
under the Constitution." Why should he 1 Is he more ju- 
dicial than the Land Officer 7 

Having broken down distinctions essential as these, it 
was not difficult for tribunals to go further, and disregard 
the differences between these two clauses, which have been 
pointed out in connection with the clauses themselves, the 
difference in the character of the parties to be delivered 
under each, and the purpose of their delivery, which makes 
the proceeding ill one case, preliminary, and in the other, 
final ; which is also to be found in the judicial opinions of 
our country. On the one side, the Supreme Court of New 
York, in their very entrance upon the consideration of a 
case under the one clause, say : — 

» Civilized nations have seen the necessity and propriety of surrendering 
fugitives from justice, that they may be tried by the laws of the country in, 
which the offence was committed.! 

On the other nde, Judge Story, for the Court, in the Prigg 
case, declares the purpose of the delivery to the master, to 
be, that he may have the " immediate possession of the slave 
and the immediate command of his service and labor." 

Throughout Marshall's celebrated argument also, flames 



* Annals of Congress, 1799-1801, 612. 
t In re Clark, 9 Wendell, 212. 

Tor declarations of this purpose, still more emphatic than this, see the 
fuller extract from their opinion, in the Appendix. 



108 

out this purpose of extradition, which makes it preliminary. 
He declares that the crime charged " is not punished by 
sending the offender out of the United States ; " and as one 
reason for delivering him over to Great Britain, that the 
Courts of the United States could not try the question of his 
guilt; and uniformly recognises the character of the fugitive 
and the nature of the demand, as necessarily and by inevit- 
able inference of law, implying a trial before acquital or 
punishment. When tribunals under the Act of 1850, find 
any such trial implied in the statute, referred to in the 
papers in the case, and arising inevitably from the legal re- 
lations of the parties ; then, they may assume an analogy 
between the two classes of cases, and then, they may talk 
and act as if such trial were to take place. At present, their 
empty guesses and vain conjectures, their balancing of prob- 
abilities and calculation of chances are only dishonest eva- 
sions of law and mockeries of justice. 



CONCLUSION. 



"Against the prisoner at the bar as an individual, I cannot have the 
slightest prejudice. I would not do him the smallest injury or injustice. 
But I do not affect to be indifferent to the discovery and punishment of this 
deep guilt." — An Argument on the trial of John Francis Knapp .- Daniel Web- 
ster. 



With so wide a difference between these two clauses, it 
may be asked, how is it that the idea of their essential an- 
alogy could have crept into the minds of Jurists and Courts 
and Commissioners ? But this is not the only aspect of this 
matter, that needs a similar explanation. How is it that the 
line of distinction between final and preliminary proceedings 
should be so completely missed, as in the proceedings under 
the Act of 1850? How could it be dreamed even, that de- 
livering a servant to his master, was a case of extradition? 
How coull there come such a substitution of rights, as of a 
limited right of removal, in the place of an absolute deliv- 
ery? How is it that the course of judicial decisions is bent 
back upon itself, and that the Courts of our country have 
donbled their track like a hunted hare? 

If we turn aside from the narrow path of legal argument, 
to glance at the essential merits of the case, and get an ans- 
wer to these questions, it is the saddest part of this history. 



110 

Only by such distortions of the law. can slave-catching be 
made sure, easy and cheap; and (I speak of physical 
strength) a strong pecuniary and political interest insists 
that unpaid bootblacks be returned to the brush. The 
Judge — how much more, he who usurps judicial functions 
in order to take jurisdiction over the case — who enters 
upon his official duties, willing, under any circumstances, to 
give a decision which shall strip a man of the attributes of 
manhood, and convert him into a chattel, which shall make 
him tbe goods, property, slave of another, first strips him- 
self of that which alone fits him to decide the rights of con- 
testing parties ; he leaves behind him as he goes to his judi- 
cial seat, the best part of a Judge, his sense of justice ; and 
takes the bench, with his mind bent to the performance of a 
base purpose. Henceforth, to him, the law has no symme- 
try nor system ; and if we find in the reports of the proceed- 
ings, marks of inextricable intellectual confusion, 01 traces 
of something worse in the action of his mind, it need not 
excite our wonder or surprise. It comes by natural and easy 
process from his first step. 

Facilis descensus Averni ; and especially with a strong 
pecuniary or partizan influence around him, pushing him 
downward, he can, without difficulty, descend far enough, 
to say as a legal truth, that an officer having charge of a 
fugitive from justice, for the purpose of transporting him 
from one State to another, "can treat his prisoner as he 
ehooses ; "* to admit that the scale of compensation, fixed 
by a statute, was so improper that he would not touch the 
fee prescribed, and yet, see no constitutional objection to 
such a bribing enactment;* to repeat an authoritative 
opinion of a supreme tribunal, and then, give to its essential 
part, no weight, no pretext or particle of respect;* to make 

* Trial of Thomas Sims, 30, 40, 40. 



Ill 

a distinction* between " the substantial facts of the case/' 
and the fact that the prisoner was a slave, f when the main 
fact attempted to be proved before him, was, that the prisoner 
was a slave, and the statements of the witness, which he 
recapitulated and on which he based his judgment, were 
statements, that he was the slave of the claimant. Losing 
sight of the essential characteristic of a final judgment. % he 
may substitute an attaching incident. § m order to obtain a 
definition which suits the present emergency, or shrinking 
from a legal investigation of the provisions of one statute, 
the constitutionality of which was before him, awaiting his 
decision, substitute in its stead the repetition of the names of 
members of the government, at the time of the passage of a 
statute somewhat similar: J or, if 1 may borrow the use of 
a word from a fresh theologian, he may "import" from his 
own laboring brain, into the efforts of the counsel, the doc- 
trine of Stipulations ; f and then, as he strikes truculent 
blows at this nightmare, convince himself that he is batter- 
ing down their arguments ; and perhaps, he may, with cold- 
blooded indifference, turn his back upon the principles of 
law, and attempt to rebut a general objection, with a special 
answer like the following: — 

" If the prisoner is the identical person mentioned and described in this 



* Undoubtedly there is such a distinction — broad enough to exclude from 
the case all evidence going to prove the fact of slavery. The perversion 
consists in recognising it, and then, giving it no weight. 

t Trial of Thomas Sims, 28, 43. 

\ See Judge Sprague's Charge. 

§ In earlier times, judgments rendered in foreign countries were not 
executed within the realm of France ; and subjects of that realm might, 
in French courts, contest their rights anew. Judge Sprague's definition of 
a «' final jadgment" would exclude an action between Frenchmen, in an 
English court, under the old French ordinance ; and we should see proceed- 
ings precisely similar — final for English, and preliminary for French par- 
ties. Perhaps, the trial of actions between the latter might be transferred 
to Commissioners ! 



112 



transcript of a record, as having escaped from Georgia, while owing service 
■(and it has been proved to me, by evidence wholly independent of the 
record, that he is), his absence from the State where the evidence is directed 
by law to be taken, so that he could not be served with notice, if he wa3 
entitled to it, was in his own wrong, and he cannot now complain that he 
had no opportunity to cross examine the witnesses."* 

If he does all this, and even more than this, besides all 
that has been exposed in this essay and elsewhere; it is all 
germane to the matter in hand. It is not so much the 
special wickedness of a single individual, as it is the neces- 
sary working out of the nation's general guilt: 

,; that foul sin gathering head 
Shall break into corruption." 

But this essential element in the case, lies almost without 
the limits of the present argument; and we have to do with 
other elements within those limits, which result therefrom, 
and sorely aggravate the central outrage: aggravations, which 
did they touch any other flesh than that of a marked and 
oppressed race, would 

" move 
The stones of Rome to rise and mutiny ;" 

and which, now, even in the race accidentally exempted 
from their operation, find enough of mother's milk to turn 
to gall against their despotism. There is. at present, no legal 
barrier between actual libertyand actual slavery for any man, 
save the hasty decision of a mere ministerial otiicer. What 
a Southern Judge, with a nice sense of justice, strangely out 
of place in the enforcement of the cruel law which c: me 
from his lips, very fitly termed the '• impassable gulf " be- 
tween freedom and slavery, Congress has bridged for us all, 
with the simple certilicate of a Commissioner. When did 
the Anglo-Saxon race ever leave their liberties so loosely 
guarded before? From a proceeding that involves in its 

* Trial of Thomas Sims, 44. 



113 



issue all that makes life in this world worth living for, and 
also the faint glimpses of light 

«' That dawn on us here," 

from the life which is to come, the national legislation has 
taken away the watchfulness of a jury, the presence of a 
judge and the cr >ss examination of witnesses; and made the 
decision of the officer who sits in the place of a judge, based 
upon no trial, (in the words of one of its own tribunals) 
' ; completely unassailable;" and yet, the regularly appointed 
Courts of Justice shrink from a thorough investigation of the 
statute. There have been les;al investigations in our coum 
try, which do honor to the American judiciary; but they 
were marked with a bold fearlessness of consequences, affect- 
ing, as they might, any political or pecuniary interest, which 
one looks for in vain, in any of the judicial opinions in rela- 
tion to the restoration to their masters, of fugitives from 
service. 

Sad, indeed, is it to a loyal man, one who firmly believes 
in the justice and beneficence of the system of law, who loves 
to lean upon the integrity, the moral courage and the wisdom 
of the Courts, to see them refusing to enter upon a thorough 
judicial investigation, to which the ablest arguments have 
invited them, and towards which, the wounded moral sensi- 
bilities of the community have impelled them; to see them 
declining accurately to weigh, and carefully to compare with 
the fundamental principles which govern the administration 
of justice, the provisions of an odious statute; and no mat- 
ter how great the breach that statute is making in our system 
of judiciary, nor how many of the best safeguards of per- 
sonal rights it sweeps away, to meet these objections, ably 
as they have been urged, with the answer, that, before this 
statute, there was another very much like it, and that was 
once decided to be constitutional, and therefore, of course, 
this must be constitutional also. 






114 

Sad, however, as it is, I think I have seen an amusing and 
even ludicrous parallel to this course of judicial reasoning. 
I have not long since been interested in the report of a certain 
engineer, who had been employed to survey a route for a 
proposed railroad. A quaint acquaintance suggested to me, 
as I read to him the report, that the members of this profes- 
sion generally find a route, with gentle grades, few short 
curves, through an easy soil and a country furnishing a large 
amount of way business. But this seemed an unusually 
favorable route, or at least, the report of it was unusually 
favorable. Among other attractive features of the country, 
the engineer says, if I recollect aright, that he found two 
extensive bogs occupying a large portion of the hue of the 
proposed route, which he had not examined; but if they 
proved to be of firm and suitable soil, the grading of the 
road would cost a comparatively small amount. My critical 
friend, who has had some experience in investments of this 
sort, remarked that the engineer did not seem prepared to 
answer the question, "Is it good, substantial bogging?*' 

The Courts seem to have adopted the same formula. If 
the Act of 1793 was constitutional, they say, this must be so, 
also. But they have a little better excuse for presuming a 
favorable answer to this preliminary question. They assert 
that the rails of the recent road are laid on the bed of an 
old track, and : - the 'bogging' is certainly good and substan- 
tial." Jonathan Trumbull, John Adams, Thomas Jefferson, 
George Washington, and the Congress of 1793 have all gone 
safely over it. The highest Courts of several States have 
crossed it, at different times ; and in the Prigg case, it held 
up the whole bench of the United States Supreme Court. 

Ah! Fellow Countrymen, this is a sad delusion. There 
is here a dangerous, dreadful bog. The Congress of 1801 
were mired here; and here.have since been lost, the trial by 
jury, the sacrcdness of the judicial office and the best part 



115 

of the law of evidence;* and now, a mad administration, 
bent on gaining notoriety for its personages, is, at the peril 
of the country's peace, and to the destruction of innocent 
life,t sinking in this same quagmire, that which is most 
valuable to a people; without which, a nation ought not to 
hold up its head among the nations of the earth, its moral 
character. 

Is thereupon the bench of all our Courts, no legal engineer 
who will try the soil of the route ; who will ascertain and 
mark the boundaries of this bog, that the rails may be re- 
moved to the solid ground if there be any; and if there be 
no solid ground ; if the main thing to be done, be not in 
accordance with, but contrary to a system of who esome law 
made for the government of a free people; if the whole 
ground along the line be bog, nothing but hopeless bog, 

" tenebrosa palus Acheronte refuso," 

let the route be, at once and forever, abandoned. 

Under any circumstances, let the train run no longer, at 
the present expense of sacrificing the most valued safeguards 
of law, and to the serious injury of our national character. 
Let the people no longer be perplexed, by seeing the most 
solemn issue, the liberty of a man, irreversibly decided, with- 
out the presence of a judge, jury or witnesses. 

Ye who believe in justice, still cling to your faith and the 
hope it inspires. The Courts will not always turn a deaf 
ear to arguments. If they do not immediately walk in the 



* See Appendix II., for some comment upon the manner in which the evi- 
dence is taken under this statute. 

t At Columbia, Pa., on the 29th of April, a police officer from Maryland, 
attempted to carry off a person as a fugitive slave, and in the scuffle that 
ensued, shot him. This seizure may not have been attempted under the 
color of this statute ; but it may, undoubtedly, be attributed to the fresh 
stimulus which the business of slave-catching has received from its passage, 
and from the whole course of the administration in relation to that business. 



116 

light of common justice and a law higher than human, they 
will at least, ere long, return to the safe line of legal pre- 
cedent, and once more, follow the established authorities. 
The nation is not so thoroughly and hopelessly corrupt, as 
this single statute would lead one to suppose. Politicians 
may declare the series of measures, of which this Act forms 
an essential part, an abiding adjustment; and haloo their 
"finality," through the country's breadth, till their voices 
are cracked with this ''shouting and singing of anthems:" 
and men upon the bench, may pronounce the constitutional- 
ity of this statute, a fact already fixed; but they cannot have 
their course. Above their arbitrary will is the Law, and 
the Constitution; and this engine of oppression must give 
way to these; for, if this Act of Congress be suffered to stand, 
then, there is a beginning of the end of American Law, and 
the vigor and virtue of the American Constitution, are fast 
passing away. It cannot always stand. It will yet be drop- 
ped from our system of laws, as a thing out. of place, a de- 
formed monster "born an age too late;" and the administra- 
tion of justice shall resume its wonted course ; and again, 
flow in those deep channels which centuries have worn for 
its currents. 

We shall, then, see those proceedings which have for the 
last year and more, under the color of Law and the as- 
sumed shelter of the Constitution, committed the last outrage 
upon humanity, stripped of all their present subterfuges and 
excuses. Then, the action will lie 

" In his true nature," 

a lawless kidnapping; and in vain, shall men attempt to 
hold up clean hands before an outraged community, and to 
cry "Korban, Korban." It was our constitutional duty. 
The Law made us kidnappers. The Constitution forced us 
to enslave a max. The Union compelled us to be brothers 



117 

to the slavestealer on the Guinea Coast. The Law they 
have outraged, the Constitution they have violated, and the 
Union they have dishonored, will, each and all, spurn them 
from their sanctuaries; and with a reviving sense of rieht 
a just public indignation will overtake those, "who had a 
part in planning, or a hand in executing " these deeds of mid- 
night darkness. 

Then, men, whose brows flushed with shame, and whose 
eyes fdled with tears, at the sound of wrongs which were 
committed in the name of their country, and by pretext of 
their authority, will lift up their heads, and say, exultingly. 
The Law was innocent. The Constitution was not an ac- 
complice. The Union had no part in that guilt. 



APPENDIX I. 



I have been made aware that the practice of the executive author- 
ity of several States has been different from what is described in 
the text.* But the words of that portion of the Act of 1793, which 
relates to fugitives from justice, are not ambiguous, but plain ; and 
can bear no other construction than that given in this essay. It is 
also an interesting fact, that while the American Constitution pro- 
viding for extradition between the several States, requires only a 
charge of crime, the treaties between the United States and Great 
Britian, made by Jay in 1794,t and by Webster in 18424 contain 
altogether different phraseology ; and, in express words, require 
that there shall be, in the country where the fugitive is found, proof, 
sufficient, according to the laws of that jilace, to authorize his com- 
mitment for trial ; and the latter treaty, apparently framed with 
more minute care, expressly provides for such a preliminary exam- 
ination as Judge Story refers to. To both these treaties is Judge 
Story's comment strictly applicable, but not to the clause of the 
American Constitution. 

It will hardly fail to be noticed, that the provisions of these trea- 
ties, in the framing of which, each country jealously watches for 
the rights of its citizens, contain safeguards for personal liberty 
and security, which the constitutional clause upon the same subject, 

* Ante. 

t American State Papers, Foreign Relations, Vol. I., -525. 

X Webster's Diplomatic Papers, 236. 



120 

sadly lacks. A Governor, unwilling, upon frivolous grounds, to 
expose the citizens of his State, or persons within its jurisdiction, 
to a distant removal and atrial in another State, may feel, perhaps, 
that he is not wholly without justification, if, in spite of the language 
of the Constitution and the Act of 1793, he follows the course 
indicated by Judge Story, though the language of his Commenta- 
ries may be made to imply an actual examination of the person 
demanded, before the executive authority of whom he is demanded, 
or at least, an examination before a magistrate in the State where 
the fugitive is found ; to which extent of watchfulness I think no 
Governor has ever yet carried his scruples. 

A case of this kind occurred, when, in 1842, Governor Davis, of 
Massachusetts, in reply to a demand from the Acting Governor of 
Virginia, refused to deliver over George Latimer to be tried for 
theft, alleging that there was not proof sufficient to raise a presump- 
tion of guilt ; and in the conclusion of his reply, he seems to feel 
that his justification is to be found in the nature of the circumstances 
and the necessity of the case, rather than in a strict interpretation 
of the words of the Constitution. He says : — 

" The tendency has been so strong to multiply these demands, and they 
come in such questionable forms, that I have felt it to be my duty, in repeat- 
ed instances, to decline compliance, believing that it was never the design of 
the Constitution to subject the people to this process, for trivial offences, or 
upon demands which contain no charge raising a presumption of guilt. I 
am persuaded that nothing short of this, can protect them against oppressive 
arrests." 

The unguarded provision of the Constitution had been perverted, 
and he felt compelled to resist its abuse. 

On the other hand, there have been Governors who have not 
hesitated to follow the letter of the Constitution and the Act of 
1793, as stated in the text. The Governors of Maine, who refused 
to deliver up Philbrook and Kelleran, in compliance with a demand 
from the Governor of Georgia, did not intimate that any evidence 
of guilt, other than so much as is necessary as the basis of a charge, 
was requisite. 'Governor Dunlap answered that there was in the 
papers brought to him from Georgia, no constitutional charge, "the 



121 



allegations of the affidavits," says he, "do not, in my judgment, 
constitute such a charge as would justify me in surrendering the 
supposed fugitive ; for, " By the Constitution of the United States, 
no warrant is to issue, except upon probable cause, supported by 
oath or affirmation ;" and " In the case under consideration, it is 
not asserted that there is probable cause, nor are facts or circum- 
stances presented, from which probable cause can be inferred." 
It will be seen here, that, when the " executive authority " only 
indirectly inquired into the amount of the evidence (that is, in order 
to ascertain merely the legality of the papers), he estimated the 
amount requisite differently from Judge Story, deeming, in this 
indirect inquiry, evidence, which would justify the issuing of a war- 
rant, sufficient, while that authority would directly demand enough 
to justify a commitment for trial. 

When, in this same case, this objection was removed, and a 
" copy of an indictment found " furnished the lawful evidence of 
a charge, Governor Kent deemed the case so far within the des- 
cription of the clause ; and only objected that the second necessary 
fact had not been proved, viz : that they had " fled from justice." 
The opinion of the Supreme Court of Maine was asked at this 
time, and they answered that it was the duty of the Executive to 
deliver the demanded citizen, upon mere indictment, and satisfac- 
tory evidence that he had fled from justice ; never intimating that 
the question of guilt or probability of guilt was left to the execu- 
tive discretion.* 

A subsequent Executive of Maine has had before him, the very 
question above discussed in connection with Judge Story's com- 
ments ; and he not only followed the course stated in opposition to 
that authority ; but most emphatically insisted that neither the Con- 
stitution, nor the Act of 1793 left him any liberty to do otherwise. 
Governor Hubbard, in a message to the Senate, of June 3, 1850, 
communicating to that body an abstract of the case, and his opin- 
ion and decision on the same — of the Wentworth's, demanded by 

* Message of Gov. Kent to the Legislature of Maine, January 8, 1839. 
9- 



122 



the Governor of New Hampshire, as charged with the commission 
of crime in that State, says: — 

"It is not required that the person be convicted of crime, but simply that 
he be charged with its commission." 

"The conditions necessary, then, to authorize the delivery up, are the 
identification of the person charged; that he be charged with treason, felony 
or other crime; that the requisition !>e from the executive authority of the 
one State, upon the executive authority of the other ; and that it be accom- 
panied by an indictment found or an affidavit made, charging the crime, and 
certified by the Governor as authentic." 

"I have, therefore, deemed it my duty to comply strictly with the letter 
and spirit of the Constitution and law of the United States, touching this 
subject. I have not felt authorised to go behind the record to look into the 
facts connected with the case before me. Such a procedure would seem 
disrespectful to a sister State, would bring our jurisdiction in conflict with 
hers, and tend to acts of retaliation." 

Possibly, it may occur to some who read the above extracts 
from his message, that Gov. Hubbard's opinion would be entitled 
to more weight, if he had not omitted from his catalogue of con- 
ditions necessary to authorise a delivery, one most essential requi- 
site, viz : proof, that the person has fled from justice. But some- 
thin"- may be pardoned to an ardent desire, on his part, to fulfil 
duties imposed upon him by the Constitution of the United States, 
to the performance of which, he, with a large portion of the com- 
munity, had then felt themselves recently recalled. If his zeal 
seems to outrun the Constitution, it is not a solitary or singular en- 
thusiasm. The soundness of his opinion in other respects, so far 
merely, as he differs from Judge Story, can hardly be questioned. 
Another extract from this message will make unnecessary, on my 
part, any attempt to explain any statutes of the States, apparently 
contradicting this view : — 

"There is, as is believed, no law of this State, which, upon a fair construc- 
tion in any degree conflicts or controls the above requirements. Were there 
any, such law must be unconstitutional."* 

The Supreme .Court of New York, having this question brought 
before them, gave the following as their opinion : — 

" This matter has usually been arranged by treaty ; but, where no treaty 



* Acts and Resolves, 1850, 316. 



123 



exists, the comity of nations requires that offenders against the laws of one 
nation, shall not find a sanctuary in another. In snch cases, a state or na- 
tion, which is required to surrender an individual who is under the protection 
of its own laws, owes it to itself as well as the individual concerned, to 
institute an examination into the facts alleged to constitute the crime, and to 
surrender the person charged, if, upon such examination, there appears sat- 
isfactory evidence of guilt. Had our Federal Constitution and laws been silent 
on this subject, and no conventional arrangement existed beliceen the several 
States composing our confederacy, it may be conceded that the practice arising 
from the comity of nations would be applicable; and before ice would sur- 
render any person demanded as a fugitive from justice, it would be our duty to 
examine into the facts of the alleged crime, and be satisfied that no reasonable 
doubt existed as to his guilt. But, under our federal government, this matter 
has been regulated, and we are not left to the uncertainty arising from an 
inquiry in one State into the particulars of an offence committed in an- 
other." 

After repeating the words of the Constitution, the Court con- 
tinue : — 

" Here, then, is the law on the subject, a positive regulation and tanta- 
mount to a treaty stipulation ; and we are not to resort to the comity of 
nations, for our guidance. Every person, who is charged with an offence in 
any State, and shall rlee to another State, shall be delivered up. It is not 
to be shown that such person is guilty; it is not necessary, as under the 
comity of nations, to examine into the facts alleged against him, constitut- 
ing the crime ; it is sufficient that he is charged with having committed a 
crime." 

" But whether he is guilty or not, is not the question to be decided here 
it is whether he has been properly charged with guilt, according to the Con- 
stitution and the Act of Congress." " Whether the prisoner is guilty or 
innocent, is not the question before us ; nor is any judicial tribunal in this 
State charged with that inquiry. By the Constitution, full faith and credit 
are to be given in all the States, to the judicial proceedings of each State. 
When such proceedings have been had in one State, which ought to put 
any individual within it, upon his trial, and those proceedings are duly au- 
thenticated, full faith and credit shall be given to them in every other State. 
If such person flee to another State, it is not necessary to repeat in such 
State to which he has fled, the initiatory proceedings which have already been 
had, but he is to be sent back to be tried, where the offence is charged to 
have been committed, to have the proceedings consummated where they 
were begun."* 



In re Clark, 9 Wendell, 210. 



124 

The foregoing extract from the opinions of two Governors, in 
cases of actual practice, and this last from the opinion of the 
Supreme Court of New York, in a case pending and argued before 
them, precisely and explicitly contradict the statement of Story's 
Commentaries, and fully sustain the statement of this essay. 



APPENDIX II. 

The manner, in which the evidence is taken in the State whence 
the person claimed is alleged to have escaped, to prove that he was 
held to service and had escaped, has not been commented upon in 
this essay ; because fundamental and fatal objections to the statute 
may be urged without touching that topic. A single effort to de- 
fend this part of the statute, which I find in " The Works of Daniel 
Webster, Vol. II.," is worthy a moment's attention. In a speech at 
Buffalo, May 22, 1851, he said, and he repeated the same argu- 
ment, afterwards, to the " Young Men of Albany : " — 

" In the second place, when a claimant comes from Virginia to New York, 
to say that one A. or one B. has run away, or is a fugitive from service or 
labor, he brings with him a record of the Court of the County from which 
he comes, and that record must be sworn to before a magistrate, and certified 
by the County Clerk, and bear the official seal. The affidavit must state 
that A. or B. had departed under such and such circumstances, and had gone 
to another State; and that record under seal, is, by the Constitution of the 
United States, entitled to full credit in every State." 

This statement makes the unconstitutionality of this part of the 
proceedings, as clear as the day. For it has long since been set- 
tled, that, in order to bring a judicial prDceeding in one State 
within the scope of this clause of the Constitution ; in order to 
give it any force in another State, it is necessary that the party to 
be affected by it, should have been, 

1. "Within the jurisdiction of the court which gave it;" 
and 



125 



2. " Duly served with process," while within that jurisdic- 
tion.* 

Let us sec how this would operate in the case of a fugitive from 
service or labor. 

I. As long as he remains in the State where he is held to ser- 
vice, and so within the jurisdiction of its courts, so long there has 
been no escape, and by the statute, no evidence that he is held to 
service can be taken ; and in no case, can it be proved that he has 
fled from that State into another. 

II. Besides this legal obstacle, there is a practical difficulty, 
quite as hard to surmount, in the way of those who would bring 
the " the full faith and credit " clause of the Constitution, to the 
support of this part of the Act of 1850. The party must be duly 
served with process. How will th it work ? The notice must be 
given before the evidence is taken ; and as, after the arrest, the 
person seized is to be carried " forthwith before " the court where 
the evidence is to be used ; the notice must also, necessarily, pre- 
cede the arrest. Imagine a fugitive from slavery, in a northern 
State (if that were legally possible) to receive lawful notice — 
twenty-four hours for every twenty miles distance, perhaps — that 
on such a day, at such a place in a southern State, Georgia or 
Alabama, for instance, before a named court of record or Judge 
thereof, evidence will be taken to prove that he owes service to 
such a master, and has escaped from the same ; to the end that he 
maybe retaken and delivered to him again. A fugitive so notified* 
when the officer came to arrest him, would rarely be found within 
his precinct. On the other hand, instead of attending the taking 
of the testimony or waiting for the arrest which would follow it, 
he would, more probably, on or about that day, be under the juris- 
diction of English Law, and perhaps, sunning himself in the tab- 
ernacles of Shadrach's court, at Montreal. 

It is interesting to trace a man of so large intellect, and so abl« 
a lawer as Mr. Webster, further in his op : nions upon this subject. 
As has been stated in the text, in the early part of his Newburyport 

* Hall v Williams, 6 Pick., 24.5 ; where the cases are collected. 



126 

letter, he supported the " preliminary " hypothesis ; and it is es- 
pecially interesting to mark the method and means of this support. 
He does not say, there are probabilities that there will be a further 
trial as well as practical difficulties or improbabilities, and the gov- 
ernment " has just as clear a constitutional right to look to one 
class of probabilities, as to the other."* He, evidently, does not 
consider this computationen rerum fortuitarum, as within the line 
of legal logic, or appropriate to judicial reasoning. He avoids it ; 
and does that, which alone can help forward the argument. He 
marches boldly up to the line ; and carelessly misstates the fact. 
Speaking of the fugitive from service, he says : — 

" lie too, is only to be remitted for an inquiry into his rights and the 
proper adjudication of them, to the State from which he fled : " " that his 
liabilities and his rights may be there regularly tried " 

He declares that the removal is for the purpose of a trial ; and 
evidently knows nothing else, that will make the proceeding pre- 
liminary. When his assertion of fact fails, the weight of his au- 
thority falls against the statute. 

He declares that the fugitive is sent back for trial. It is no 
such thing. No such purpose is named or implied, either in the 
Constitution, or the statute, or the papers in any particular case. 
On the other hand, a contrary purpose is manifest in each of these 
three. The fugitive is not claimed for trial ; nor examined for 
trial ; nor certified for trial ; nor sent back for trial. General 
Putnam's letter to the British commander, furnishes the best model, 
whereon to write his character as he passes through the various 
stages of this process. He is claimed as a slave ; arrested as a 
slave ; brought before the tribunal as a slave ; tried as a slave ; 
certified as a slave, and removed as a slave. In the light of actual 
history, we may also add : — 

P. S. He has been beaten and sold as a slave. 

All this is, however, from the first part of Mr. Webster's letter. 
Towards its close, he writes that " a main and perhaps the only 

* Trial of Thomas Sims, 43. 



127 

insuperable " difficulty in the way of a trial by jury for the alleged 
fugitive, had been created by the States themselves ; and subse- 
quently he introduced into the national Senate, a bill providing for 
such trial. Yet, he had declared that, under the Constitution, the 
proceeding was to be " preliminary and summary ;" and- that the 
fugitive was to be sent back whence he fled, for trial. Is it de- 
fending the Constitution, to interpolate a jury trial into what that 
instrument meant should be a summary process, " in order to allay 
excitement and remove objections ? " " Call you this backing ? " 

Since the letter, from which these extracts are taken,was written, 
Mr. Webster has again attempted the defence of this statute.* He 
last enters the arena from still another door. As soon as he lifts up 
his voice in the discussion, he ignores the " preliminary" hypothe- 
sis. He says — Fellow citizens : the provisions of this statute are 
fair for the fugitive and constitutional. Upon my reputation as a 
lawer, upon my annual income, sometimes more, sometimes less, 
but never as low as " thirty pounds," I say to you, they are con- 
stitutional. They are so, not because there is to be, hereafter, a 
final trial of the alleged fugitive's liabilities and rights, in the State 
to which he is sent ; but because the question has already been 
tried there ; and the claimant brings with him the record of a 
court, that such a man, described by such marks, owes him service, 
and has escaped. There is nothing more to be done, but to seize 
the individual, find the marks specified, and identify the person. 
This can be done without Judge or Jury ; and there is an end of 
the matter. 

There is one explanation of contradictions like this in arguments 
in support of the Act of 1850, which recurs at their every reading. 
To the minds of its advocates, the provisions of the Constitution 
have left things loose, floating and chaotic. They seem to think, that 
the Constitution has fixed nothing, and established nothing. The fact 
is otherwise. The Constitution is definite in its phraseology ; and 
needs only a fearless investigation of its clauses to determine sat- 



* Extract from his speech at Buffalo, Ante, 124. 



128 



isfactorily the questions which arise under them. One would think 
that Webster at least, might escape this confusion. Even if others 
upon the same side could not, we should expect that he would talk 
coherently and like a lawyer, upon a question of law. But, when he 
debases his intellect to the support of this iniquitous and unconsti- 
tutional statute, his head swims and his brain grows confused. 

"He 

Reeled as of yore beside the sea, 
When blinded by (Enopion, 
lie sought the blacksmith at his forge, 
And climbing up the mountain gorge, 
Fixed his blank eyes upon the sun." 



AN ARGUMENT 



ON THK 



"FUGITIVE SLAVE ACT," 

BY 

THOMAS H. TALBOT, 

OF THE CUMBERLAND BAR, MAINE. 



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